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TREATISE 



LAW OF DOWER 



BY 



CHARLES H. SCRIBNER. 




IN TWO VOLUMES, 



VOL. I. 



PHILADELPHIA: 

T. & J. W. JOHNSON & CO., 

No. 535 Chestnut Street. 

1867. 



13 i-m? 

Entered, according to Act of Congress, in the year 1864, by 

CHARLES H. SCRIBNER, 

In the Clerk's Office of the District Court of the Northern District of Ohio. 



TO THE 



EMORY OF MY FATHER 



% »rk 



IS 



DEDICATED. 



PREFACE. 



In" the volume now submitted to the public, I have 
endeavored to collect, and arrange in a convenient form, 
the various rules and principles of the law establishing and 
regulating the Right of Dower. 

This subject occupies a prominent and important place 
in the American Law of Real Property. The right of dower 
was established in England more than seven hundred years 
ago. For centuries it was regarded there as a favorite of 
the law. It is not strange, therefore, especially when we 
consider the humane purpose it was intended to subserve, 
that the custom was transplanted here by the colonists, nor 
that we should find in the early legislation of the country 
evidence of an intention on their part to make it one of the 
permanent institutions of the land. And it has become so. 
With two or three exceptions, the statutes of all the United 
States contain provisions securing to the widow her right of 
dower. 

In view of the general importance of the subject, and of 
the fact that it has necessarily given rise to many interest- 
ing legal questions, and numerous judicial decisions, in the 
several States, it is a matter of some surprise that, among 
all the legal publications issued from the press, no element- 
ary work has heretofore appeared, professing to treat, in an 
extended form, upon the American Law of Dower. The 
English treatise of Mr. Park, republished in this country 
nearly thirty years since, is the only work extant which 

(v) 



PREFACE. Vll 



The task thus imposed is exceedingly laborious, and, not 
unfrequently, unsatisfactory in its results. 

Having on several occasions labored under the difficul- 
ties, and experienced the inconveniences above suggested, 
it occurred to me that a compilation of the decisions of the 
American courts upon the law of dower might be of service 
to the profession. But when I set about the collection of 
the materials which have been wrought into the present 
volume, it was with no view to the preparation of an inde- 
pendent work. My purpose was to incorporate the Amer- 
ican decisions, in the form of notes, with the standard Eng- 
lish publication above referred to. It soon became apparent, 
however, that this plan was, in a measure, impracticable, 
and would but imperfectly accomplish the object had in 
view. It was abandoned, therefore; and, fully conscious of 
my inability properly to perform the task, and with many 
misgivings as to the result, I nevertheless ventured to enter 
upon the labor of preparing for the press a new work, on 
the Law of Dower. 

At the outset of this undertaking it was feared that dis- 
similar statutory regulations in the several States might 
render it exceedingly difficult to embody, in a systematic 
and acceptable form, the American law upon this subject. 
But upon a careful analysis and comparison of the different 
statutes, it was ascertained that the difficulty was not so 
formidable as at first apprehended. It was found that, as 
a general rule, the various changes introduced — especially 
those relating to and regulating the Right of Dower — were 
not peculiar to any one State, but were common to several 
States; and that the conflicting laws, and decisions made 
under them, might be so classified and arranged as to pre- 
sent no serious obstacle to a consecutive and intelligible 
treatment of the subject. 

In the plan adopted it has been thought expedient to ex- 
hibit, in convenient divisions, and under appropriate heads, 
the rules of the common law pertaining to the subject- 



Vlll PREFACE. 

matter of the work; and in proper order and connection, 
to point out in what particulars these rules have been 
changed by statute, or judicial decisions, in the different 
States. In many respects the common law is entirely un- 
changed, and in those particulars in which modifications 
have been introduced, especially by statute, we can not 
fully comprehend the force and object of the enactment 
making the change, without a clear conception of the rule 
as it stood before any attempt at its modification. It 
seemed advisable, therefore, to present fully the rules of 
the common law relating to dower, and the principles upon 
which they are founded. In doing this, reference has not 
unfrequently been made to principles and decisions con- 
tained in the ancient books of the law. It is true that 
much of the matter in these old volumes is now regarded 
as antiquated and obsolete, and it may be conceded that a 
portion of it is inapplicable to this country. But it should 
not be forgotten that these repositories of ancient legal lore 
are the fountains whence is drawn a large proportion of 
the law of the present day. Cases may differ materially 
in their circumstances, while the principles which gov- 
ern them remain the same. Ancient rules and decisions 
may not always be precisely applicable to cases arising in 
modern practice, yet they will generally aid us in arriving 
at correct conclusions, and not unfrequently furnish the 
principle by which a given question is to be determined. 
Hence, while some of the authorities referred to in the en- 
suing pages, and the principles established by them, may 
appear to have no special application to the United States, 
it is believed they will be found not entirely without value 
to the American lawyer. 

I can not conclude these observations without referring, 
in terms of grateful acknowledgment, to the generous aid 
received, on more than one occasion, from those friends 
whose encouraging counsel in the enterprise in which I 
have embarked has done much to stimulate and sustain me 



PREFACE. IX 



in its prosecution. I can only hope it may hereafter appear 
that these evidences of friendly regard and kindly interest 
were not unworthily bestowed. 

In a work in which it is attempted to embody the mate- 
rial provisions of the legislation of thirty-four different 
States on the subject of dower, and to collate the various 
judicial decisions relating to the same subject, it would be 
strange if errors did not exist. But having labored faith- 
fully to make it accurate and reliable, I venture the hope 
that the volume now submitted, notwithstanding its im- 
perfections, will be received with that generous indulgence 
which is so eminently characteristic of the profession. 

CHARLES H. SCRIBNER. 

Mount Vernon, Ohio, 

January, 1864. 



CONTENTS. 



CHAPTER I. 

PAGE 

Of the Origin and Nature op Dower .... 1-22 

§ 1 . Introductory. 

2. Supposed antiquity of dower. 

3. Dower not known to the ancient Britona. 

4. Dos of the civil law. 

5. Marriage custom of the ancient Germans. 

6. Similar custom of other northern nations. 
7-11. Probable origin of dower in England. 

12, 13. Provision for dower in the charter of Henry I. 
14, 15. In Magna Carta of King John. 

16. In the first charter of Henry III. 
17, 18. In the second charter of Henry III. 

19. Additional privileges secured to the widow by these charters. 

20. Dower ad ostium ecclesise. 

21, 22. Extent to which the wife might be endowed. 

23. Power of the husband over his wife's contingent dower. 

24. Effect of assignment of dower ad ostium ecclesise. 

25. Statutes of Merton and Gloucester. 

26. Dower by the common law. 

27. Dower by the custom. 

28. Dower ex assensu patris. 

29. Dower de lapluis beale. 

30. Abolition of do wer ad ostium ecclesise, ex assensu patris, and de la pluis beale. 

31. Controversy as to the origin of dower in lands. 
32, 33. Object of the provision : a favorite of the law. 

34. Concluding observations. 

CHAPTER II. 

Dower in tee United States 23-57 

\ 1. Introductory. 
2-5. Dower in Virginia. 

(Xi) 



Xll 



1 


CONTENTS, 


6-7. Dower 


in Massachusetts. 


8. 


Connecticut. 


9. 


New Jersey. 


10. 


New York. 


11, 12. 


Delaware. 


13, 14. 


South Carolina. 


15. 


North Carolina. 


16. 


Tennessee. 


17. 


Georgia. 


18. 


Mississippi. 


19. 


Alabama. 


20. 


Khode Island. 


21. 


Maryland. 


22. 


Vermont. 


23. 


Kentucky. 


24. 


New Hampshire. 


25. 


Pennsylvania. 


26. 


Ohio. 


27, 28. 


Indiana. 


29. 


Illinois. 


30. 


Michigan. 


31. 


Missouri. 


32. 


Arkansas. 


33. 


Maine. 


34. 


Florida. 


35. 


Wisconsin. 


36. 


Iowa. 


37. 


Minnesota. 


38. 


Oregon. 


39. 


Kansas. 


40. 


Texas. 


41. 


California. 


42. 


Louisiana. 



CHAPTER III. 

Of Marriage as a Requisite of Dower . . 58-68 

g 1. Valid marriage essential to dower. 
2. The English marriage acts. 
8. The regular and the irregular marriage. 
4—19. Marriage per verba deprsesenti at common law. 



CONTENTS. XU1 



CHAPTER IV. 

Of Marriage per Verba de PrjEsenti in the United 

States 69-93 

\ 1, 2. Views of American commentators. 

3-8. The doctrine in New York. 

9. Maryland. 

10. New Jersey. 

11. Pennsylvania. 

12. California. 

13. Ohio. 

14. Louisiana. 
15,16. Kentucky. 

17. Alabama. 

18. Texas. 

19, 20. Massachusetts. 

21-24. Maine. 

25-27. New Hampshire. 

28. Tennessee. 

29,30. Vermont. 

31. Mississippi. 

32. North Carolina. 

33, 34. Rule as held in the Supreme Court of the United States. 



CHAPTER V. 
Op Marriage per Verba de Ftjturo cum Copula . . 94-99 

\ 1, 2. Distinction between marriage per verba de prsesenti and per verba de futuro 
cum copula. 
3-6. The doctrine in the United States. 
7. Concluding observations. 

CHAPTER VI. 

Whether the Irregular Marriage confers a Right of 

Dower 100-107 

§ 1. Introductory. 

2-4. Doctrine of the ancient text-books. 
5, 6. Tendency of the modern English authorities. 

7. Views of American text writers. 

8. Analysis of the authorities. 

9, 10. Incidents of the irregular marriage in England. 
11, 12. Inapplicability of the English doctrine in the United States. 



XIV CONTENTS. 

CHAPTER VII. 
Op Marriages Void in Law 108-128 

1 1, 2. Marriage de facto and marriage dejure. 

3, 4. Matters which render a marriage void. 

5-15. Prior marriage undetermined. 

16, 17. Idiocy. 

18-20. Lunacy. 

21. Duress. 

22-27. Fraud. 

28. Error. 

29. Marriage induced by duress, fraud, or through error, at the option of the 

injured party, treated as voidable on'y. 

30. Statutes requiring a decree of nullity. 

31. Marriage 'within the prohibited degrees. 
32-34. Marriage between whites and negroes. 
35, 36. Failure to observe statutory regulations. 

CHAPTER VIII. 
Or Marriages Voidable in Law ... . 129-142 

(S 1. Introductory. 
2-10. Marriage within the age of consent. 
11-17. When marriage within the age of consent confers dower. 

18. Impotence. 

19. EfFect of decree of nullity. 
20-23. Rule as to foreign marriages. 

CHAPTER IX. 

Alienage of the Husband or Wife as affecting the 

Right of Dower 143-185 

1 1. Introductory. 

2, 3. Alienage at common law. 

4. Naturalization and denization at common law. 

5, 6. Alienage in the United States. 

7-50. In the several States. 

51. In the District of Columbia. 

52. American statutory modifications of the common law considered. 

53. Naturalization in the United States. 

54-58. Naturalization in the United States prospective only. 
59-61. What persons can not become citizens. 



CONTENTS. XV 



CHAPTER X. 

Or the Nature and Qualities of the Property subject 

to Dower 186-214 

$1. Introductory. 

2. Lauds and tenements. 

3. Hereditaments real. 
4-10. Mines and quarries. 

11-24. Wild lands. 

25-39. Shares in corporations. 

40. Water granted for hydraulic purposes. 
41,42. Slaves. 



CHAPTER XI. 

Of the Nature and Qualities of the Estate subject 

to Dower 215-236 

\ 1. Introductory. 
2, 3. The estate must be one that the issue of the wife might inherit. 

4. Not necessary that the wife should have issue. 

5. It must confer a right to the immediate freehold. 

6, 7. Incorporeal hereditaments governed by the same rule. 
8, 9. The husband must be vested with the freehold and inheritance simul et 
semel. 
10. There must be no intervening freehold estate. 
11, 12. Intervening chattel interest no impediment to dower. 
13-15. Determination of the intermediate estate during the coverture gives dower. 
16-34. Effect of intervening contingent freehold remainder. 

35. The vesting of such remainder defeats dower. 
36, 37. Effect of intervening possibility. 



CHAPTER XII. 
Of Seizin as a Requisite of Dower .... 237-267 

\ 1. The general doctrine. 
2-5. Nature and incidents of seizin. 
6-11. Seizin in the United States. 
12-15. Mere right- of entry insufficient to give dower at common law. 

16. Judgment alone against disseizor inoperative to confer seizin. 

17. Execution served by the heir insufficient to give dower. 

18. Necessity of actual entry abrogated by statute in England. 
19-21. The doctrine in the United States. 



XVI CONTENTS. 

22, 23. Effect of death of bargainee before enrollment. 
24—26. Seizin in law sufficient to give dower. 

27. Conveyances under the statute of uses. 

28. Shifting uses. 

29. Doctrine of uses in the United States. 

30. Seizin of incorporeal hereditaments. 
81, 32. Tortious seizin. 

83. Joint seizin. 
34, 35. When rendered sole by relation. 
36-38. Transitory seizin. 

39-46. Conveyance, and simultaneous reconveyance by mortgage. 
47, 48. Requisites of the rule making such seizin transitory. 

49. Instantaneous seizin. 



CHAPTER XIII. 

Dower in Estates in Pee Simple, Fee Tail, and Es- 
tates ACQUIRED BY EXCHANGE .... 268-275 

§ 1. Dower in estates in fee simple. 

2-6. In estates in fee tail. 

7—11. In estates acquired by exchange. 

12-14. Effect of the determination of estates by natural limitation. 



CHAPTER XIV. 

Dower in Determinable Estates 276-307 

1 1. The maxim cessante statu primilivo cessat derivativus. 

2. Dower in defeasible estates. 

3-5. In estates upon condition. 

6-8. In base and qualified fees. 

9-12. In estates determinable under power of appointment. 

13, 14. In estates determinable under collateral limitations. 

15-38. In estates determinable under conditional limitations, or by executory 
devise. 

CHAPTER XV. 

Dower in Estates in Remainder and Reversion . . 308-320 

§ 1-6. The general doctrine. 

7, 8. Lands subject to prior right of dower. 

9-18. Rule where the estate comes by descent. 

19. Rule where the estate is acquired by devise. 

20. Illustration of the doctrine. 

21,22. Release or extinguishment of the elder right. 
23-26. Rule where the estate is acquired by purchase. 



CONTENTS. XV11 



CHAPTER XVI. 

Dower in Estates in Joint Tenancy, Coparcenary and 

Common 321-342 

\ 1-5. The rule at common law as to estates in joint tenancy. 

6-12 Statutory modifications in the United States. 
13-17. Dower in estates in coparcenary and common. 
18-33. Effect of sale in partition. 



CHAPTER XVII. 

Dower in Estates not op Inheritance .... 343-356 

\ 1-5. Rule at common law as to estates for life. 

6-9. Rule in the United States. 
10-18. Dower in estates for years. 

19. In estates at will. 
20, 21. In wrongful estates. 

CHAPTER XVIII. 

Dower in Rents and Annuities 351-365 

\ 1-8. Dower in rents. 

9-12. The doctrine as to annuities. 

CHAPTER XIX. 
Dower in Trust Estates 366-394 

§ 1, 2. At common law estate of cestui que use not subject to dower. 

3. The Statute of Uses. 
4^17. Dower in estate of cestui que trust. 
18. Statute 3 & 4 Will. IV. chap. 105. 
19-25. Rule in the United States. 

26. Reversionary estate of cestui que trust. 
27, 28. Disseizin of cestui que trust. 
29-35. Estate of trustee. 

VOL. I. B 



XV111 CONTENTS. 



CHAPTER XX. 



Dower in Equitable Estates acquired under Execu- 
tory Contracts oe Purchase . . . 395-428 

\ 1-3. Introductory. 

4-10. In what States seizin of the legal estate is required. 
11-36. In what States dower may be had of equitable estates. 
37-44. Whether the equity must be complete. 

45-49. The rule requiring the husband to be possessed of the equity at his death. 
50-52. The rule where the husband receives the legal title after transferring his 
equitable estate. 



CHAPTER XXI. 

Dower under the Doctrine op Equitable Conversion 429-441 

\ 1. The doctrine of equitable conversion. 

2-11. Dower in money directed to be converted into land. 

12. Dower in land ordered to be turned into money. 

13-15. The right and effect of election. 

CHAPTER XXII. 

Dower in Mortgaged Estates 442-456 

g 1-7. Dower in equities of redemption at common law. 
8-20. The rule in the United States. 

21. Dower in equities of redemption of mortgages for years. 
22, 23. Dower in the estate of the mortgagee. 

CHAPTER XXIII. 

Dower in Equities of Redemption as against a Mort- 
gagee 45Y-494 

2 1, 2. Dower before the mortgage becomes absolute. 
3-9. Eight of the widow to redeem. 
10. Extent to which she must redeem. 
11 12. Rule where the husband is grantee of part, only, of the mortgaged 

premises. 
13-21. Rule where the mortgagee has acquired the equity of redemption. 



CONTENTS. XIX 

22. Redemption by the widow a condition precedent to dower. 

23. Bight of a widow who has redeemed, to be reimbursed. 
24, 25. Foreclosure' and sale after the husband's death. 
26-30. Foreclosure and sale during the husband's lifetime. 
31-34. Whether the wife must be made a party to such proceeding. 

35. Terms upon which she may redeem where Bhe was not made a party. 

36. Foreclosure by entry. 

37-51. Whether the widow may have the mortgage satisfied from her husband's 
estate. 



CHAPTER XXIV. 

doweb as against the heir of the mortgagor, or the 

Purchaser of the Equity of Redemption . . 495-529 

$ 1-21. Where the holder of the equity has redeemed, the widow must contribute. 

22-24. Whether she must contribute where the mortgage is redeemed in the 
husband's lifetime. 
25. Principal or interest of the mortgage debt must be payable before contri- 
bution can be required. 

26-28. Extent to which the widow must contribute. 

29-36. Rule where the holder of the equity has procured an assignment of the 
mortgage. 

37. Election to contribute, or have the mortgage debt deducted from the value 

• of the land. 

38. As against a holder who has failed to redeem, the widow may have dower 

as of an unincumbered estate. 
39-41. Dower where there are successive mortgages. 
42-51. When the mortgage will be treated as satisfied. 



CHAPTER XXV. 

Dower as against the Vendor's Lien for "Unpaid Pur- 
chase Monet 530-535 



CHAPTER XXVI. 

Dower in Lands acquired for Partnership Uses . . 536-549 

CHAPTER XXVII. 
Dower in Lands appropriated to Public Uses . 550-555 



XX CONTENTS. 



CHAPTER XXVIII. 

Dower as affected by Acts of the Husband prior to 

the Marriage 556—515 

\ 1. Alienation before marriage defeats dower. 

2-5. Rule where the alienation does not become fully operative until after 
marriage. 
6. Alienation on the day of marriage. 
7, 8. Void and voidable conveyances. 
9-14. Conveyances fraudulent as to the wife. 
15-21. Contracts of sale before marriage. 
22, 23. Charges created before marriage. 
24, 25. Mortgages executed before marriage. 
26-28. Husband's release of equity of redemption of mortgage executed before 

marriage. 
29-33. Judgments recovered before marriage. 
34. Leases for life made before marriage. 



CHAPTER XXIX. 

Dowffit as affected by Acts of the Husband during 

the Coverture 516—609 

(S 1-3. At common law, dower can not be defeated by the husband after it has 
once attached. 
4, 5. Exceptions to this general rule. 

6, 7. Instances in which the wife is concluded from avoiding the acts of the 
husband. 
8-15. Wife may avoid collusive recovery against the husband. 
16, 17. Stat. 3 & 4 Will. IV. ch. 105. 

18. Statutory changes in the United States rendering the concurrence of the 
wife unnecessary to divest dower. 
19, 20. The rule in Connecticut. 
21, 22. Vermont. 

23-26. North Carolina. 

27-31. Tennessee. 

32, 33. Georgia. 

34. Mississippi. 

35. New Hampshire. 
36-40. Pennsylvania. 

41. States in which the.common law rule is retained. 

42. Execution of contract of sale made prior to the marriage. 

43. Husband's release of equity of redemption of mortgage executed during 

the coverture. 



CONTENTS. XXI 

44. Sale of equity of redemption on execution against the husband 

45. Mechanics' lien. 

46-54. Forfeiture by reason of the husband's crime. 



CHAPTER XXX. 

Dower where the Wife has joined in a Conveyance 

Fraudulent as to Creditors .... 610-617 



CHAPTER XXXI. 
Consummation of the Right of Dower .... 618-622 

1 1-4. By the death of the husband. 
5-7. By sentence of divorce. 

Appendix ... 623-624 

Index 625-664 



INDEX TO CASES CITED. 



A. 










PAOE 






PAGE 


Aughtie v. Aughtie , 




140 


Aaron v. Bayne 


383, 


396, 596 


Averill v. Loucks 




546 


Adams v. Chaplin 




270 


Aymar v. Raff 




136 


v. Hill 261, 265, 


454, 


463, 508 








v. Beekman 




303, 306 








Adkins v. Holmes 109, 125 


,392 


, 564, 566 


B. 






Ainslie v. Martin 


143, 


146, 182 








Albany v. Derby 




173 


Bachman v. Chrisman 




409 


Aldrich v. Manton 




167 


Bailey v. Duncan 264 


405 


418, 424 


Alexander v. Cunningham 




347 


v. Fiske 




183 


Allan v. Young 




122 


Baker v. Chase 




561, 562 


Allen v. McCoy 




201 


Ballentine v. Poyner 




202 


v. Holton 




324 


Bambaugh v. Bambaugh 




325 


v. Allen 




384, 413 


Bank of Ogdensburgh v. Arnold 457, 485 


Allison v. Wilson 




440 


Bank of Waltham v. Waltham 


210 


Alsberry v. Hawkins 




152 


Banks v. Sutton 21, 367, 


369, 


370, 371, 


Ambrose v. Ambrose 




372 


372, 373, 374, 375, 


377, 


379, 400, 


Ancott v. Catherick 




260 


442, 455, 459 


465 


476, 560 


Anderson v. Millikin 




184 


Banks v. Walker 




167, 182 


Anonymous 


119, 


182, 280 


Barbour v. Barbour 453, 


508, 


510, 518, 


Anstice v. Brown 




167 






520, 521 


Apple v. Apple 218, 


308, 


309, 312 


Barford v. Street 




283 


Appleton v. Boyd 




324 


Barker v. Barker 




297, 306 


Archer's case 




223, 226 


v. Parker 


449 


526, 603 


Arnett v. Arnett 




213 


Barkshire v. The State 




127 


Arnold v. Arnold 




218, 308 


Barnes v. Wyethe 




121 


v. Ruggles 




210 


v. Gay 416, 


421, 


422, 423, 


v. Earle 




130 






532, 534 


Arrant v. Robertson 




267, 602 


v. Mawson 




190 


Arrington v. Arrington 




592 


Barr v. Galloway 




241 


Arundel's case . 




274 


Bartholomew v. Belfield 




606 


Ashby v. Palmer 




441 


Bartlett v. Gouge 




392 


Atkins v. Kron 




168 


v. Van Zandt 




341 


Atkinson v. Baker 




345 


Barzizas v. Hopkins 




173 


Attorney-General v. Scott 


377 


378, 381 


Bashaw v. The State 




89, 128 


Atwood v. Atwood 




253, 318 


Bateman v. Bateman 




394 


Aubin v. Daly 




365 


Bates v. Bates 




218, 221 



( xxiii ) 



XXIV 



INDEX TO CASES CITED. 



Beamish v. Beamish 68 

Bear v. Snyder 308, 315 

Beard v. Knox 57 

Beardslee v. Beardslee 220, 244, 278, 

279, 308 
Beek v. MoGillis 167 

Bedford's case 274, 275, 359 

Bedon v. Bedon 270 

Beekman v. Hudson 312, 317 

Beer v. Ward 64 

Belknap's ease 619 

Bell v. Mayor of New York 261, 451, 
461, 462, 464, 475, 476, 478, 482, 
485, 508, 512, 513 
Bell v. Phyn " 545 

Ex parte 379, 560 

Bennett v. Smith 133 

Benson v. Scot 576, 579 

Benton v. Benton 121 

Bergen v. Bennett 440 

Berkshire v. Vanlore 255, 277, 354 

Berrien v. Berrien 438 

Bevant v. Pope 392, 455 

Billings v. Taylor 194 

Binney's case 208 

Bird v. Gardner 447, 460, 489, 498 

Bishop v. Boyle 603 

Bishop's Appeal 410 

Bisland v. Hewett 532, 572 

Blain v. Harrison 453 

Blair ». Thompson 264, 384, 402, 530 
Blakeney v. Ferguson 396 

Bligh v. Brent 204, 206 

Blitheman v. Blitheman 559 

Blood v. Blood 218, 251, 253, 308 

Blow v. Maynard 218, 308 

Blydenburgh v. Northrop 463 

Bodmin v. Vandebendy 459 

Bogie v. Rutledge 261, 263 

Bolton t). Ballard 448, 460, 501, 525 
Bonham v. Badgley 109 

Boothby v. Vernon 226 

Borland v. Marshall 241, 242, 247, 253 
v. Nichols 409, 410, 600 

Bottomley v. Fairfax 372, 560 

Bourne v. Simpson 138 

Bowen v. Collins 253, 383, 396, 402 

Bowie v. Berry 384, 392, 403, 423, 

427, 564, 601 



Bowles' case 
Bowles v. Poore 
Boyd v. Talbert 

v. Thompson 
Bradley v. Holdsworth 
Bragg's case 
Bratton v. Mitchell 
Braxton v. Lee 
Brewer v. Connell 

v. Van Arsdale 



227, 235 

343 

352 

411 

206 

188 

410 

564 

595 

213, 384, 402, 

406, 418, 454 

Brightwell v. Mallory 210 

Brinckloe v. Brinckloe 601 

Brockett v. Leighton 187 

Brook v. Brook 142 

Brooks v. Clay 153 

v. Harwood 520 

Broughton v. Randall 266 

Brown v. Duncan 454, 478 

v. Lapham 464, 475, 506, 507, 525 

v. Shilling 175, 182 

v. Williams 572, 573 

v. Wood 242, 243, 253 

Browning v. Beane 118, 119 

Brownlee, Matter of 182 

Brunswick v. Litchfield 86, 128 

Brury's case 109 

Buchan v. Sumner 536, 546, 548 

Buchanon v. Deshon 155 

Buckeridge v. Ingram 187, 204, 365 

Buckingham v. Reeve 213, 352 

Buckitt v. Spofford 248 

Buckley v. Buckley 546 

Buckworth v. Thirkell 289, 306 

Bullard v. Bowers 261, 454, 458, 463, 

522, 526 
v. Briggs 615 

Buller v. Cheverton 345 

Bunting v. Lepingwell 60, 105 

Burgess v. Wheate 379 

Burke v. Barron 416 

Burnside v. Merrick 541, 548 

Burr v. Sim 441 

Burris v. Page 270, 347 

Burtis v. Burtis 106 

Bush b. Bradley 242, 247 

Bushby v. Dixon 244, 253 

Bustard's case 319 

Butler and Baker's case 258, 271 



INDEX TO CASES CITED. 



XXV 



c. 

Calais v. Marshfield 146 

Calder v. Bull 383, 396, 590 

Calloway v. Bryan 116,117 

Calvin's oase 142, 143, 144, 158 

Cambridge v. Lexington 117, 141 

Campbell v. Hall 142 

v. Clark 383, 396 

v. Murphy 415, 454, 461, 494, 

527 

v. Knights 453, 461, 465, 471 

v. Gordon 182 

Appellant 201 

Cape Sable Company's case 208 

Cardigan v. Armitage 190 

Cardwell v. Sprigg 248 

Carhampton v. Carhampton 253 

Carll v. Butman 453, 461, 465, 476, 508, 

511,516,518,568 

Carmiehael v. The State 79, 106, 128 

Carr v. Ellison 441 

v. Porter 270 

Carter, Ex parte 465 

Carter v. Goodin 453, 502, 522, 525 

Casborn v. English 392 

Casborne v. Soarfe 369 

Case of Phipps 146 

of Fines 279 

Cass v. Martin 454, 461, 475, 508, 513 

v. Thompson 272 

Catherwood v. Caslon 66 

Catterall v. Catterall 67 

v. Sweetman 68 

Cave v. Holford 282 

Chalmer v. Bradley 439 

Chalmers v. Stewart 184 

Chambers v. Dickson 77 

Chaplin v. Chaplin 359, 365, 367, 369, 

375, 377, 381 

Chapman v. Schroeder 201, 383, 396 

Charles v. Monson Man. Co. 182 

Chase's case 263, 359, 365, 452 

Cheek v. Waldrum 454 

Chelton v. Henderson 269 

Cheney v. Arnold 74, 96, 98, 107 

Cheseldine v. Brewer 74 

Chester v. Greer 241, 251, 595 

v. Willes 500 

Chew v. Corn's of Southwark 242, 247 



Chew v. Chew 




271 


v. Farmers' Bank 


452 


568 


Chiles v. Jones 




248 


Chinnnbbee v. Nicks 




282 


Chirac v. Chirac 




175 


Choteau v. Thompson 




603 



Church v. Church 384, 402, 408, 421, 

422, 452 

Chudleigh's case 369 

Claiborne v. Henderson 384, 385, 402, 

403, 404, 418. 

Clark ». Munroe 261, 262, 462 

v. Field 122 

v. Clark 88 

Clay v. White- 241 

Clayton v. Wardell 73, 107 

Clement v, Mattison 120 

Clendenning v. Clendenning 113 

Clifton v. Haig 171 

Clough v. Elliott 454, 508, 513 

Clowes v. Clowes 123 

Coates v. Cheever 194, 261, 267, 451, 

497, 522 
Cooke v. Phillips 308 

Coleman's case 131 

Coles v. Coles 451, 522 

Colgan v. McKeon 168 

Collingwood v. Pace 144 

Collins v. Torry 406, 451, 497, 521 

v. Kincaid 607 

v. Carlisle's Heirs 283 

v. Jessot 61 

Colson v. Colson 236 

Colt v. Nettervill 207 

v. Colt 370 

Combs v. Young 2, 202, 593, 595 

Comly v. Strader 622 

Commonwealth v. Hunt 117, 140 

Compton v. Bearcroft 140 

v. Oxenden 500 

Comyn v. Kyneto 189 

Cong. Church v. Morris 148 

Conner v. Shepherd 195 

Connolly v. Smith 164 

Conway v. Beazley 141 

Cook v. Cook 213 

Cooper v. Whitney 392, 452, 456 

Copeland v. Sauls 168 

Copp v. Hersey 454, 508 

Corbet's case 358 



XXVI 



INDEX TO CASES CITED. 



Cordal's case 218, 228, 231 

Corfield v. Coryell 174 

Cornwall v. Hoyt 607 

Coster v. Clarke 384, 392, 393, 438, 549 
Cotteivv. Westcott 619 

Countess of Berkshire v. Vanlore 255, 

277, 354 
Covert v. Hertzog 410, 600 

Cowley v. Anderson 257, 321, 322 

Cowman v. Hall 392, 565 

■Cox v. Chamberlain 282 

v. Combs 116 

Cozens v. Long 607 

Crabb v. Pratt 384, 402, 413, 420, 532 
Crabtree v. Bramble 380, 431 

Crafts v. Crafts ■ 261, 267 

Craig v. Leslie 429 

Cram v. Burnham 86, 91 

Crane v. Palmer 385, 402, 413, 421, 422 
Cranson v. Cranson 561, 562 

Cregier, Matter of 312, 315, 316, 319 
Crittenden v. Johnson 51, 392, 396, 

456, 601 

v. Woodruff 396, 601 

Crocker v. Fox 590 

Cromwell's case 259 

Cropsey v. McKinney 109, 112 

Cropsy v. Ogden 116 

Crouch v. Puryear 194 

Crow v. Powers 214 

Crump v. Morgan 118 

v. Norwood 226, 228 

Cryer v. Andrews 172 

Culverhouse v. Beach 181 

Cumberland v. Graves 167 

Cunningham v. Burdell 74 

v. Cunningham 97, 622 

v. Knight 261, 262, 452, 

463, 568, 569 

v. Moody 369, 431, 432, 

435 

Currin v. Finn 166 

Curtis v. Curtis 379, 380 

v. Hobart 622 



D. 

Dalrymple v. Dalrymple 59, 60, 63, 94, 

102, 141 



Damon's case 87 

Danby's case 444 
Danforth v. Smith 453, 458, 461, 475, 

511, 514 
Daniel v. Leitch 423, 454, 461, 492 

D'Arcy v. Blake 811, 369, 380, 381, 

433, 443 

Davenport v. Farrar 385, 402, 412 

v. Sovil 453 

Davidson v. Graves 893, 454, 568 

v. Frew 592, 593 

Davis v. Davis 51, 601 

v. O'Ferrall 54, 416 

v. Hall 171 

v. Logan 326, 327 

v. Mason 240, 242 

Davol v. Howland 621 

Dawson v. Godfrey 143 

Dean v. Mitchell 384, 392, 393, 402, 

564, 567 

Dearborn v. Dearborn 458 

Deeth v. Hale 439 

Deforest's Appeal 383, 396 

Delmonico v. Guillaume 546 

Deloney v. Hutcheson 325 

Den v. Hardenbergh 325 

v. Johnson 611 

Dennis v. Eiernan 384 

Denton v. Nanny 452, 461, 479, 480, 482 

v. Livingston 210 

Derush v. Brown 392, 402 

Dexter v. Harris 468 

Dickson v. Dickson 117, 141 

Dimmock's case 249 

Dimond v. Billingslea 565 

Divine v. Mitchum 543 

Dixon v. Saville 379, 442 

Dobson v. Taylor 385 

Dodson v. Hay 431 

Doe v. Robinson 345 

v. Bernard 557 

v. Breakey 68 

ii. Lazerly 151 

v. Hornibleu 168 

v. Scudamore 226 

v. Hutton 292 

v. Frost 297 

Dole v. Irish 183 

Dolf v. Basset 327 

Dolin v. Coltman 445 



INDEX TO CASES CITED. 



XXV11 



Donnelly i>. Donnelly 82, 103, 110, 112, 

113 
Dormer v. Parkhurst 236 

Douglass v. Diokson 267 

Dow v. Dow 187 

v. Stock 239 

Draper v. Baker 460, 522 

Dred Scott v. Sandford 182 

Drenkle's Estate 600 

Drummond v. Drummond 601 

Drury v. Drury 560 

Drybutter v. Bartholomew 203 

Dubs v. Dubs 384, 402, 411, 454 

Dudley v. Grayson 152, 153 

Duhring v. Duhring 543 

Duke of Hamilton v. Mohun 459 

Duke of Richmond v. Miln 154 

Dumaresly v. Fishly 80, 95, 106, 109, 128 
Dunbarton v. Franklin 88, 128 

Duncan v. Duncan 96 

Duncomb v. Duncomb 227, 235 

Duncuft v. Albrecht 207 

Dunham v. Osborn 218, 221, 308, 309, 
312, 314, 316, 319 
Dupre v. Boulard 125 

Durando v. Durando 308, 312, 316, 317, 

319 
Durham v. Angier 199, 310 

Dyer v. Clark 540, 548 



E. 

Earl of Cardigan v. Armitage 190 

Earl of Portsmouth v. Bunn 205 

Earl of Bedford's case 274, 275, 359, 

567 
Earl of Arundel's case 274 

Earl of Stafford v. Buckley 365 

Eaton v. Simonds 450, 460, 464, 487, 
503, 505, 506, 509, 526 
Eberle v. Fisher 598, 599 

Edmondson v. Montague 384, 402, 413, 

420, 423 
v. Welsh 392 

Eldon v. Doe 151 

Eldredge v. Forrestal 218, 221, 253, 
308, 309, 312, 317 
Elle v. Young 440 

Ellicott v. Pearl 248 



Ellioott v. Welch 






530 


Elliott v. Gurr 




109 


129, 139 


Elwood v, Klock 






314, 318 


Elwys v. Thompson 






465 


Emerson v. Harris 






242 


Ennas v. Franklin 






171 


Escheator v. Smith 






171 


Eslava v. Lepretre 






261, 454 


Etheridge v. Malempre 




148 


Evans v. Evans 


301 


402 


411, 420 


Evertson v. Tappen 


451, 


491, 


508, 513, 
519 


Ewings v. Ennolls 






601 


Ex parte Bell 






379, 560 


Carter 






465 


Hall 






141 


Marianne Pio 




175 


Newman 






182 


Overington 






182 


Paul 






182 


Smith 






182 


Exton v. St. John 






343, 379 



F. 

Fairfax v. Hunter 144 

Farmers' Loan and Trust Co. v. The 



People 


167 


Farnshill v. Murray 


118, 140 


Farrell v. Enright 


149 


Fenton v. Reed 71, 


82, 86, 98, 112 


Ferlat v. Gogin 


120, 122 


Finch v. Squire 


205 


Findlay v. Smith 


194, 200 


Fines, The case of 


279 


Firestone ». Firestone 


392, 422, 562, 


563, 564, 565, 567 


Fish v. Fish 


454 


Fisher v. Grimes 


316, 347 


v. Johnson 


530 


Fisk v. Eastman 


218, 221, 308 


Fitch v. Cotheal 


452 


Flanders v. Lamphear 


458 


Flavill v. Ventrice 


287 


Fleeson v. Nicholson 


403, 597 



Fletcher v. Ashburner 429, 431, 432, 439 

v. Robinson 370, 376 

Forbes v. Moffatt 500 

Forgey «. Sutliff 160 



XXV111 



INDEX TO CASES CITED. 



Foss v. Crisp 




154, 175 


Golden v. Prince 






175 


Foster v. Means 




118, 119 


Gold v. Ryan 




453 


601 


v. Dwinel 




456 


Gomez v. Tradesmen's Bank 




392 


Fowler i>. Smith 




142 


Goodburn v. Stevens 




544 


548 


■u. Griffin 




273 


Goodell v. Jackson 




167 


183 


v. Thayer 




324 


Goodenough v. Goodenough 




288 


Fox v. Southack 




144, 154 


Goodright ». Mead 




558 


559 


v. Husman 




171 


Goodwin v. Thompson 


128 


132 


137 


Frantz v. Harrow 




48, 49 


d. Hubbard 






241 


Frazer v. Fulcher 




620 


v. Richardson 






324 


Freeman v. Freeman 




383, 396 


Gorham v. Daniels 347 


383 


396, 


591 


Frost u. Etheridge 




592, 593 


Gove v. Cather 






603 


v. Peacock 




451, 479 


Governeur v. Robertson 






144 


Fry v. Merch. Ins. Co. 


454, 


461, 568, 


Governor v. Rector 






130 






569 


Graham v. Bennett 




77 


113 


v. Noble 




588 


v. Sam 






213 


v. Smith 




152 


Graff v. Smith 






597 


Furman v. Clark 




452, 461 


Granstein's case 






182 








Grant v. Dodge 261 


265, 


453, 


463 








Graves v. Graves 






121 


G. 






Gray v. The State 






184 








Greene v. Greene 


537 


539, 


544 


Gage v. Ward 265, 


453, 


461, 465, 


Green v. Causey 383 


396, 


573, 


596 






476, 527 


v. Putnam 




221, 


308 


Gaines v. Relf 




110 


v. Liter 


238 


248, 


253 


v. Gaines 392, 562 


,563 


, 564, 567 


v. Chelsea 


242, 


243, 


253 


Galbraith v. Greene 




256 


Greenwood v. Curtis 






141 


v. Gedge 


542 


546, 548 


Gregory v. Baugh 






183 


Gammon v. Freeman 


261, 


262, 265, 
453, 463 


Greer v. Chester 
Griffin v. Reece 






594 
601 


Ganer v. Lanesborough 




112 


Griggs v. Smith 




261, 


267 


Gardner v. Wood 




146 


Grisham v. The State 




90, 


128 


v. Greene 




308, 309 


Gully v. Ray 261, 264, 


384, 


402, 


406, 


Garton's Heirs v. Bates 




261 




419, 


426, 


564 


Gathings v. Williams 




109 


Gulston v. Gulston 






379 


Gates v. Wiseman 




605 


Gwynne v. Cincinnati 






552 


Gawen v. Eamtes 




362 










Geer v. Hamblin 312 


314 


317, 319 


H. 








Germond v. Jones 




392, 393 








Gest v. Flock 




440 


Hale v. Plummer 




542, 


548 


Gibson v. Crehore 450, 


460, 


464, 465, 


v. Munn 






397 


475, 476, 487, 489, 


513, 


515, 516, 
518, 526 


Haleyhuton v. Kershaw 
Hall v. Ashby 






171 
241 


Giles v. Gullion 


48, 49, 555 


Ex parte 






141 


Gillespie v. Somerville 


384 


402, 420 


Hallett v. Collins 




80, 93 


Gilliam v. Moore 




261, 262 


Hamaker v. Hamaker 






118 


Gillis v. Brown 




346 


Hamblin v. Bank, &c. 




322, 


326 


Gilpin v. Howell 




209 


Hamilton v. Hughes 384, 


389, 


402, 


406, 


Given v. Marr 




622 






423, 


424 


Godwin v. Winsmore 




378 


v. Mohun 






459 



INDEX TO CASES CITED. 



XXIX 



Hamlin v. Hamlin 
Hantz v. Sealy 
Harding o. Alden 
Hardy v. De Leon 
Hargreaves v. Parsons 
Hargroves v. Thompson 
Harrison v. Eldridge 
Harrow v. Johnson 

Hart v. McCollum 



383, 396, 401 

76 

621, 622 

172 

207 

128 

528, 603 

454, 461, 477, 

493, 603 

38, 383, 396, 

454, 596 

Hartshorns v. Hartshorne 452, 477, 

513, 518, 568 

Hartshorn v. Hubbard 458 

Hartwell v. Jackson 113 

Hastings v. Farmer 183 

v. Crunckleton 201 

v. Stevens 454, 461, 465, 475, 

490, 508, 522, 526 

Hawkins v. Page 405 

Hawley v. James 283, 384, 402, 406, 

407, 408, 421, 423, 451, 557 

■v. Bradford 451, 477, 490, 491 

Haydon v. Gould 105 

Hearle v. Greenbank 369, 431 

Heart v. State Bank 210 

Hebron v. Colchester 147 

Heed v. Ford 384, 402, 406, 423, 425, 

426, 564 
Heffer v. Heffer 123 

Heffner v. Heffner 112 

Heigham v. Bedenfield 559 

Helenstine v. Garrard 241 

Helffenstein v. Thomas 128 

Helfrich v. Obermyer 598 

Hemming v. Price 109 

Henegan v. Harllee 454, 461, 493 

Henry's case 450, 520, 522 

Henry v. Felder 270 

Herbert v. Wren " 361 

Herron v. Williamson 392, 404, 418 
Heseltine v. Siggers 207 

Heth v. Cocke 454, 461, 465, 481, 

485, 568 
Heyns v. Villars 288 

Heywood v. Smith 280 

Hickman v. Irvine 201 

Hicks v. Cochran 74 

Higginbotham v. Cornwell 602 

Higgins v. Breen 110, 112 



Hildreth v. Jones 526 

Hill v. Adams 459, 560 

v. Mitchell 2, 187, 213 

Hinchman v. Stiles 452, 477, 492, 522, 

.523, 525 
Hinnershits v. Bernhard 410, 600 

Hinton v. Hinton 392, 455 

Hiram v. Pierce 128, 140 

Hitchcock v. Harrington 256, 451, 495, 

508, 521 
Hitchens v. Hitchens 218, 313, 317, 459 
Hoogland v. Watt 451 

Hobbs v. Harvey 261, 453, 527 

Hoby v. Hoby 191 

Hodges v. McCabe 592, 593 

Hogle v. Stewart 607 

Holbrook v. Finney 261, 267, 324, 

326; 462 
Holdernesse v. Carmarthen 365 

Holland v. Cruft 269 

Holmes v. Holmes 79, 491 

Holt v. Hemphill 241 

v. Clarencieux 132 

Hooker v. Hooker 228, 230 

Hoots v. Graham 201 

Hopkins v. Frey 384, 403, 452 

Hornsey v. Casey 601 

House v. House 451, 462, 491, 

508, 514 
Howard v. Priest 542, 548 

v. Bartlet 140 

v. Cavendish 188 

Howe v. Starkweather 210 

Howse v. Chapman 205 

Hubbard v. Goodwin 173 

Hubbell v. Inkstein 113 

Huckler v. Cobel 403 

Hughes v. Shaw 595 

Hull v. Rawls 116 

Humble v. Mitchell 207 

Hunt v. Warnicke 152 

Hurst v. Meason 208 

Hutchins v. State Bank 210 



I. 

Iaege v. Bossieux 603 

Ilderlon v. Ilderton 141 
Inglis u. Trustees Sailor's Snug 

Harbor 146 



XXX 



INDEX TO CASES CITED. 



Ingram v. Morris 
Innes v. Jackson 
In re Drenkle's estate 
In the Matter of Taylor 
Isham v. Ben Iron Co. 



558, 562. 



573 

446 

600 

73 

210 



Jackson v. Claw 
v. Winne 
u. Burns 
v. White 
■a. Lunn 
v. Etz 
v. Adams 
v. Sanders 
■u. Wood 
v. Brownson 
v. Sellick 
v. Howe 
v. Dewitt 

v. Kip 
v. Edwards 
v. Schauber 
■u. Burr 
v. Parker 
Jacques v. The Public Admr. 



71, 103, 115 

71 

143 

146 

167 

167 

167 

173 

183 

201 

201, 242 

243 

261, 451, 462, 

569, 571 

279, 281 

327, 329, 330, 334 

440 

440 

444 



James v. Rowan 
v. Morey 
Janes v. Janes 
Jeffries v. Ankeny 
Jenkins v. Bisbee 

v. Jenkins 
Jennison v. Hapgood 
Jenny v. Jenny 
Jewell v. Jewell 
Jinkins v. Noel 
Johns v. Johns 
Johnson v. Kincade 
v. Thomas 
v. Perley 
Jones v. McMasters 
v. Patterson 



74, 119, 

124 

326, 384, 392, 403 

500, 519 

112 

184 

74 

118, 119 

450, 477, 526 

383, 396, 591 

92 

148 

204, 210 

119 

384, 402, 406 

200 

172 

384, 402, 411 



Junk v. Canon 384, 402, 411, 423, 425 



K. 



Kay v. Webb 
Keckley v. Keckley 



168 
454, 493 



Keenan v. Keenan 
Keith v. Trapier 
Keller v. Michael 
Kelly v. Harrison 

v. Mahan 
Kemble v. Church 
Kenley v. Kenley 
Kennerly v. Misso. Ins. Co. 
Kenn's case 
Kent v. BurgeBS 
v. Harpool 
Keyes v. Keyes 
Khun v. Kaler 
Kidder v. Blaisdell 
Kilham v. Ward 
Killinger v. Beidenhauer 
King, The, v. Fielding 
v. Dunsford 
v. Bates 
Kingman v. Sparrow 
Kinsolving v. Pierce 
Kintner v. McRae 
Kirby v. Dalton 
Kirk v. Dean 
Kittle v. Van Dyck 
Klutts v. Klutts 

Knight v. Barber 

v. Frampton 
Knox v. Jenks 
Kreider v. Kreider 
Kurtz's Appeal 



171, 182 

454, 475, 478 

598 

143, 147, 157 

384, 402, 410 

119 

112 

555, 601 

105, 140 

141, 142 

228 

89, 118 

199 

383, 396 

146 

600 

62 

194 

205 

212 

248 

392, 564, 565, 567 

414, 422 

•598 

261, 262, 451 

384, 403, 415, 421, 

454, 532 

207 

393 

241, 248 

598 

410 



Labatut v. Scmidt 
Lacon v. Higgins 
Ladd v. Ladd 388 

Lamar v. Scott 
Lambert's Lessee v. Paine 
Lane v. Baker 
v. Gover 
Lanfair v. Lanfair 
Latour v. Teesdale 
Laurens v. Jenney 
Lawrence v. Brown 

v. Beverleigh 
v. Miller 
Lawson v. Morton 384, 



171 


, 182 




140 


, 396 


, 590 




187 




143 




184 




568 




527 




63 




171 




273 




431 




452 


392, 


406, 


423, 


424 



INDEX TO CASES CITED. 



XXXI 



Leavitt i>. Lamprey 


812, 


316, 318 


Lee v. Smith 




113 


v. Salinas 




172 


v. Lee 




213 


■v. Lindell 




328, 336 


Leefe, Matter of 




167 



Leigh and Hanmer's case 135 

Leinaweaver v. Stoever 409, 410, 600 

Lenox v. Notrebe 392 

Letters v. Cady 78 

Lewis Bowles' case 227, 235 

Lewis v. James 416, 453 

v. Moorman 413, 420, 532 

Ligonia v. Buxton 86, 128 

Lillingston's case 578 

Lincecum v. Lincecum 113 

Lindell v. McNair 50 
Lindsey v. Stevens 384, 402, 406, 418 

Link v. Edmondson 283, 557 

Little's case 182 

Littlefield v. Crocker 453 

Littleton v. Littleton 561, 562, 592, 

593, 596 
Little Miami R. R. Co. v. Jones 554, 555 

Lloyd v. Conoyer 328, 529, 602 

v. Petitjean 142 

Lobdell v. Hayes 399, 423 

London v. London 595 

Londonderry v. Chester 87, 107, 128 

Lord Fairfax's case 144 

Lord Sandys v. Sibthorpe 204 

Lord Stafford v. Buckley 204 

Lord Cromwell's case 259 

Lord Windsor's case 345 

Lord Clancurry's case 142 

Lord Abergavenny's case 578 

Loring v. Melendy 350 

Loubat v. Nourse 543, 548 

Low v. Burron 343, 345 
Lund v. Woods 450, 460, 464, 471, 
487, 571, 603 

Lynch v. Clarke 167 



M. 



Macauley v. Dismal Swamp Land Co. 

201, 602 
Machell v. Clarke 279, 280, 558, 559 
Mahoney v. Young 273 



Majury v. Putnam 446, 498 

Malin v. Coult 385, 402, 413, 421, 422 

Mangue v. Mangue 84, 107, 109 

Manhattan Co. v. Evertson 610, 617 

Mann v. Edson 220, 253, 383, 396 

Manning's case 218 

Manning v. Laboree 319, 453, 52*2 

Mantz v. Buchanan 452, 461, 464, 465, 

477, 493, 508, 568 

Marianne Pic, Ex parte 175 

Markham v. Merrett 546 

Marsh v. Hutchinson 618, 619 

Marshall v. Loveless 168 

v. Conrad 173 

Martin v. Martin 112 

v. Woods 143, 147 

v. Dryden 242 

Mathewson v. Smith 454, 461, 465, 

494, 522, 527 

Matlock v. Matlock 542, 548 

Matraver's case 619 

Matter of Windle 167 

of Leefe 167 

of Brownlee 182 

of Cregier 312, 314, 315, 

316, 319 

Matthews v. Matthews 329, 330 

Maundrell v. Maundrell 282, 459 

May v. Specht 383, 396, 401 

v. Rumney 50, 383, 396, 601 

Mayburry v. Brien 261, 262, 263, 322, 

326, 452 
Maynye's case 605, 606 

McAdam v. Walker 64 

McAlpin v. Woodruff 352 

McArthur v. Porter 423, 529, 530, 

533, 534 
McCabe v. Bellows 460, 464, 470, 508 
McCafferty v. McCafferty 622 

McCans v. Board 213 

McCartee v. Teller 384 

McCarthy v. Marsh 167 

McCauley v. Grimes 261, 263, 452 

McCaw v. Galbraith 171 

McClenaghan v. McClenaghan 171 

McClure v. Harris 264, 267, 422, 

453, 530 

McCreery v. Allender 155 

v. Somerville 155 

McCulloch v. McCulloch 141 



XXX11 



INDEX TO CASES CITED. 



MoDaniel v. Richards 171, 175, 182 

McDonald v. Aten 385, 402, 412, 421 
McDougal v. Hepburn 210 

McElroy's case 119 

McGaughey v. Henry 283 

McGee t>. McGee 592, 593 

McGregor v. Comstock 167 

Mcllvaine v. Coxe 146 

Mcintosh v. Ladd 596 

Mclver v. Cherry 452, 591, .594 

McKee v. Pfout 241 

McKinney v. Clarke 121 

McLardy v. Flaherty 239 

McLean, Assignee, u. Hockey 351 

McMahan v. Kimball 326, 385, 402, 413, 
453, 465, 476, 478, 568, 572, 601 
MoNish v. Pope 392, 394 

Medway v. Needham 141 

Meeks v. Richbourg 171 

Meigs v. Dimock 530, 531 

Melizet's Appeal 555 

Menifee v. Menifee 214, 396 

Menvil's case 135, 145, 146, 606 

Merle v. Andrews 172 

Merrill v. Rumsey 233 

Messiter v. Wright 450, 460, 464 

Mick v. Mick 161, 164 

Middleborough v. Rochester 119 

Middleton v. Shelly 568 

Mildmay's case 274 

Mildred v. Neil 601 

Miles v. Fisher 326 

Milford v. Worcester 85, 128 

Milledge v. Lamar 302 

Miller v. Miller 324 

v. Stump 384, 403, 421, 422, 

428, 452 
v. Wilson 385, 402, 411, 423, 614 
Milner v. Lord Harewood 345 

Mills v. Van Voorhis 261, 452, 461, 463, 
464, 465, 477, 484, 508, 571 
Mole v. Smith 459 

Mongin v. Baker 607 

Montgomery v. Bruere 386, 387, 411, 

452, 568 

v. Dorion 144, 168 

Moody v. King 297 

Mooers v. White 167 

Moore v. Esty 218, 221, 227, 264, 

279, 308, 454 



Moore v. Tisdale 153 

v. Rollins 194, 195, 261, 262, 

453, 508, 518, 522 

v. Gilliam 262 

v. City of New York 552, 553 

Morgan v. McGhee 140 

Morrill v. Menifee 213 

Morris v. Ford 241, 415 

Morrison v. Gemme 51 

Mosher v. Mosher 199, 272, 327 

Moss v. Moss 122 

Mount Holly v. Andover 122 

Mrs. Danby's case 444 

Murdock v. Ratcliff 350 

Murrell v. Matthews 270 

Mussey v. Pierre 155, 170 



N. 



Nash v. Baltwood 195 

v. Preston 260, 392, 455 

Nason v. Allen 309, 453 

Naylor v. Baldwin 444 

Naz. Lit. Inst. v. Lowe 422, 530, 532, 

603 
Neimcewicz v. Gahn 490 

Newbury v. Brunswick 91, 128 

Newman, Ex parte 182 

New River Co. v. Graves 203 

Newton v. Cook 450, 508, 510, 568 

Niles o. Nye 450, 507, 508 

Noel v. Ewing 48, 49, 555 

v. Bewley 225 

v. Jevon 392, 455 

Noreross, case against 85 

Northeutt v. Whipp 213, 218, 221, 273, 

302, 308 
Northern Bank Ky. v. Roosa 350, 352 
Northfield v. Plymouth 91 

Norwood v. Marrow 250, 592 

Nottingham v. Calvert 261, 453, 461, 
462, 465, 478, 568 



O. 

Oakes v. Marcy 248 

O'Ferrall v. Simplot 54, 416 

Oldham v. Sale 392, 402, 564, 566 

Orr v. Hodgson 144 



INDEX TO CASES CITED. 



xxxm 



Otis v. Parshley 218, 308, 309, 310 

Otway v. Hudson 371, 376, 431 

Overington, Ex parte 182 

Overton v. Perkins 595 

Owen v. Robbins 385, 402, 412, 420, 

423, 425 

v. Hyde 202 

Owings v. Norwood 155 



Page's case 
Page v. Page 
Paine's case 

Palmer v. Horton 
Palmes v. Danby 455, 
Parish v. Ward 
Paris's case 
Park v. Barron 
Parks v. Brooks 
Parker v. Parker 
v. Bleeke 
Parkins v. Coxe 
Parnell v. Parnell 
Parsons v. Perns 
u. Boyd 
Partington's case 
Partridge v. Partridge 
Part on v. Hervey 

Patterson v. Gaines 
Patton v. Philadelphia 
Paul v. Ward 
Ex parte 
Peabody v. Patten 
Pearson v. Howey 
Peay v. Peay 
Pense v. Hixon 
People v . Hovey 

v. Folsom 

v. Irvin 

v. Gillis 
Perine v. Dunn 
Perkins v. Little 
Perrin v. Perrin 
Perry v. Perry 106. 

Peter v. Beverly 
Pettitt v. Pettitt 
VOL. I. 



144 

213 

61, 270, 273, 

287, 359 

607 

459, 465, 476 

167 

320 

117, 118, 128 

384, 402, 413 

119 

557, 579 

202 

119 

239 

325 

255 

659 

128, 130, 133, 

138 

140 

79, 113 

168 

182 

450, 460 

75, 106, 128 

283, 383, 396 

54, 416 

117 

144, 149 

167 

345 

561 

187 

121 

, 120, 122, 140 

429 

120 



Petty v. Petty 




561, 562 


Phelps v, Jepson 




326 


Phillips v. Gregg 




93, 140 


v. Rogers 




154 


Philly v. Sanders 




428 


Phipps, case of 




146 


Pickering v. Appleby 




207 


Pidge v. Tyler 




241 


Pierce v. Trigg 




548 


Pifer v. Ward 




603 


Pinkham v. Gear 




454 


Piper v. Richardson 




, 154 


Pitt v. Jackson 




369 


Planters' Bank v. Merchants' Bank 210 


Platner v. Sherwood 




618, 619 


Plunkett v. Holmes 




226 


Polly Gray v. The State 




184 


Pool v. Pratt 




130 


Poor v. Horton 




354 


Popkin v. Bumstead 




446, 498 


Portsmouth v. Portsmouth 




119 


v. Bunn 




205 


Potter v. Burchsted 




312 


v. Wheeler 




327 


v. Titcomb 




155 


Potts v. Cogdell 




437 


Powdrell v. Jones 




396 


Powell v. Powell 




120 


u. Mons. & Brimf. 


Man 


. Co. 392 


Power v. Power 




410 


Pratt v. Taliaferro 




441 


Prevost, Succession of 




80 


Price v. Price's Heirs 




209 


v. Sykes 




415 


Priddy v. Rose 




365 


Priest v. Cummings 


162, 


164, 175, 
176, 179 


Pringle v. Gaw 




410 


Pritts v. Ritchey 384, 


402, 


409, 410, 


411, 419, 422 


423 


425, 600 


Proprietors, &c. v. Permit 


241 


Pugh v. Bell 384 


402 


405, 418 


Pullen v. Shillito 




340 


Purdy v. Purdy 325, 


384, 


403, 423, 
428, 465 


Purefoy v. Rogers 224 


226 


227, 228 


Putnam v. Putnam 




117, 141 


Putney v. Dresser 




324 


Pynchon v. Lester 


450, 


466, 508, 
510, 520 



XXXIV 



INDEX TO CASES CITED. 



Q. 



Quarles v. Lacy 615 

Quarrington v. Arthur 194 

Queen Anne's Co. v. Pratt 572, 573 

Queen, The, v. Millis 64, 65, 94, 97 



Badnor v. Rotheram 371 

Ramires v. Kent 149 

Randall v. Phillips 325 

Randolph v. Doss 256, 267 

Rands v. Kendall 261, 385, 402, 423, 

453, 569 

Rank v. Hanna 327, 601 

Rankins v. Rankins 606 

Rawdon v. Rawdon 118, 119 

Rawlings v. Adams 392, 564 

Ray v. Pung 282, 379 

Reautne v. Chambers 50 

Reddick v. Walsh 50 

Redpath v. Rich 167 

Reed v. Passer 63 

v. Morrison 261, 263, 384, 402, 

411, 454, 461, 477, 493, 523, 

568, 597, 598 

v. Kennedy 326 

v. Whitney 397 

v. Shepley 456 

Reese v. Waters 170 

Reeves v. Reeves 121 

Reid v. Campbell 594, 595 

v. Laing 94 

Remington's case 109 

Bennington v. Whithipole 140 

Respublica v. Chapman 146 

Rex v. Brampton 62, 142 

v. Birmingham 121 

v. Burton-upon-Trent 123 

v. Gordon 130 

v. Lady Portington 618 

Reynolds v. Reynolds 308, 309, 312, 

313, 315 

t>. Com. Stark Co. 350 

Richards v. McDaniel 171, 182 

Richardson v. Wyatt 537 

v. Skolfield 556 

Riddlesberger v. Mentzer 409, 600 



Riddlesden v. Wogan HO 

Ripley v. Waterworth 345 

Ritchie v. Putnam 182 

Robbins v. Robbins 572, 573, 574 

Roberts v. Dixwell 369 

Robertson v. Miller 173 

v. Cowdrey 122 

Robins v. Crutchley 105 

Robinson v. Bland 141 

v. Bates 612 

i>. Miller 314, 317, 384, 

402, 406 
v. Townshend 365 
v. Leavitt 454, 508 

Robison v. Codman 308, 392, 393 

Bodebaugh v. Sauks 77, 1 28 

Rogers v. Rawlings 420 

Rose v. Clark 73, 107 

Rossiter v. Cossit 454, 461, 465, 475, 
490, 508, 513, 522, 526 

Rouche v. Williamson 168 

Rowland v. Rowland 561 

Rowton v. Rowton 384, 386, 402, 

403, 418 
Ruding v. Smith 142 
Runyan v. Stewart 452, 505, 528 
Russell v. Temple 209 

v. Austin 451, 508, 519 

Rutherford v. Munce 453, 477 

v. Read 595 



Sabell's case 








109 


Safford v. Safford 


308, 


312, 


313 


315 


Salter v. Butler 








345 


Sammes v. Payne 






285 


287 


Sandford v. McLean 


491, 


572, 


573 


574 


Sandys v. Sibthorpe 








204 


Saville v. Saville 








465 


Scanlan v. Wright 








154 


Schall's Appeal 








410 


Schauber v. Jackson 








440 


Schnebly v. Schnebly 








201 


Schroeder v. Chapman 




38 


596 


Scott v. Shufeldt 






122 


124 


v. Cohen 








171 


v. Sandford 








182 


v. Crosdale 








597 



INDEX TO CASES CITED. 



XXXV 



Scott ». Hancock 
Scroggins ». Scroggins 
Seaman v. Vawdrey 
Sebben v. Trezevant 



488, 489, 526 
121 
190 
171 



Secrest v. McKenna 253, 383, 396, 401 
Seeley v. Jago 434, 439 

Sellars v. Davis 112 

Sergeant v. Steinberger 326 

Sewall v. Lee 154, 607 

Seymor's case 279, 280, 281 

Shaeffer v. Weed 603 

Shafher v. The State 133, 138 

Shattuck v. Gregg 198 

Shaupe v. Shaupe 409, 410 

Shaw v. Thompson 353 

Sheafe ». O'Neil 154, 443 

Shelley's case 245 

Shepherd v. Shepherd 377 

Sherwood v. Vandenburgh 261, 402, 408 
Shields v. Lyon 384, 402, 413 

Shoemaker v. Walker 308, 309, 811, 
384, 387, 390, 402, 410, 454, 579 
Siemmessen v. Bofer 149 

Sim v. Miles 98 

Simonton v. Gray 453, 461, 508, 517, 

518, 603 
Simpson v. Gutteridge 459 

Sir Anthony Mildmay's case 274 

Sire v. City of St. Louis 336 

Sisk v. Smith 151, 385, 402, 412, 

453, 601 

Sistare v. Sistare 149 

Slater v. Nason 154 

Slaymaker v. Gettysburg 209 

Small v. Procter 248, 392 

Smart v. Whaley 110, 112 

Smiley v. Smiley 213 

v. Wright 385, 402, 421, 423 

Smith v. Adams 381, 396 

v. Addleman 385, 402, 413, 421 

v. Claxton 439 

v. Jackson 451, 477, 544 

v. Eustis 453, 461, 463, 522, 568 

o. Kelley 465 

v. Handy 477 

v. Smith 110, 112, 113, 117, 

547, 621 

v. Zaner 148 

v. Stanley 261, 262, 453, 463, 

509, 528 



Smith v. Turner 
d. Spencer 
Ex parte 
Smith's Appeal 
Sneed v. Ewing 
Sneyd v. Sneyd 



175 
801 
182 
274 
139 
260 



Snow v. Stevens 449, 460, 522, 526 

Snowhill v. Snowhill 440 

Snyder v. Snyder 453, 461, 474 

Southcoat v. Manory 445 

Spangler v. Stanler 215, 348, 384, 

403, 414 

Spaulding v. Warren 248 

Speight v. Meigs 383, 396 

Spencer v. Scurr 194 

Spratt v. Spratt 182 

Sprint v. Hicks 364 

Squire v. Compton 459 

Stafford v. Buckley 204 

Stanwood t>. Dunning 266, 267, 392 

Starke v. Chesapeake Ins. Co. 182 

Starks v. Traynor 172 

Starr v. Peck 73, 95, 107 

State v. Murphy 82, 124 

v. Hodgskins 87, 128 

v. Rood 91 

v. Samuel 92, 106 

v. Moore 112 

v. Walters 126 

v . Robbins 128 

v. Patterson 140 

v. Primrose 148 

v. Rogers 149 

e. Black mo 151 

v. Boston C. & M. R. R. Co. 173 

v. Penney 182 

v. Ross 183 

v. Managers of Elections 183 

v. Hayes 183 

v. Davis 183 

o. Clairborne 184 

v. Cantey 183 

v. Franklin Bank 211 

Steadman v. Palling 369 

Stedman v. Fortune 383, 396, 589 

Stelle «. Carroll 384, 417, 452, 453 

Stemple v. Herminghouser 152 

Stephens v. Swann 173 

Steuart v. Beard 384, 403, 421, 422, 601 

Stevens v. Stevens 189 



XXXVI 



INDEX TO CASES CITED. 



Stevens i>. Smith 273, 384, 392, 402, 

406, 418 

v. Owen 199 

Stevenson v. Dunlap 152 

v. McReary 92 

Stewart v. Menzies 94 

v. Southard 184 

». Stewart 383, 396, 558, 562, 
573, 589, 590 
Stimpson v. Batterman 324 

Stinson v. Sumner 601 

Stokes v. Fallon 51, 156 

Stone v. Stone 601 

Stoppelbein v. Shulte 454, 461, 521 

Stoughton v. Leigh 187, 189, 191, 361, 

567, 577 
Stow v. Tifft 260, 261, 451, 462, 571 
Streeter v. Burbage's Heir 25 

Stribling v. Ross 241, 242, 615 

Strong v. Clem 48, 49, 555 

Strudwick v. Shaw 247 

Succession of Prevost 80 

Sullivan v. Sullivan 121 

Summers v. Babb 615 

Sumner v. Partridge 288, 306 

v. HampBon 539 

Sutliff v. Forgey 159,162,170 

Sutton v. Rolfe 257, 322, 326 

v. Warren 140, 141 

Swaine v. Perine 451, 455, 476, 499, 
508, 512, 513, 519, 561, 602 
Swannook v. Lyford 459, 560 

Swayne v. Fawkener 204 

Sweetapple v. Bindon 369, 376, 430 

Swift v. Kelly 140 



Tabele v. Tabele 451, 477, 491 

Tabler v. Wiseman 326 

Talbott v. Armstrong 48, 49, 242, 530 

Tate v. Tate 241, 415, 562, 589 

Taylor v. Parsley 37, 414, 591, 592 

v. Diplack 266 

v. McCrackin 385, 402, 413, 453 

v. Fowler 453, 529 

In the Matter of 73 

Taylor's case 256, 353 



Tempest v. Kilner 207 

Terry v. Buffington 120 

Tevis v. Steele 264, 266, 267, 454 

Thacker v. Hawk 184 

Thayer v. Thayer 383, 396, 590 

The Governor v. Rector 130 

The King v. Dunsford 194 

v. Bates 205 

The Queen v. Millis 64, 65, 94, 97 

The Manhattan Co. v. Evertson 610, 617 

Thomas v. Thomas 241, 250, 414 

v. Simpson 410 

Thompson v. Leach 225 

v. Thompson 244, 384, 390, 

403, 421, 454, 532, 534 

v. Vance 282, 283, 347 

v. Murray 392 

v. Cochran 416, 421, 422, 

423, 530, 532 

v. Boyd 452, 466, 468, 474, 

475, 515 

Thorndike v. Spear 383, 396 

Thoroughgood's case 239 

Thornton v. Dixon 537 

Thurlow v. Massachusetts 175 

Thynn v. Thynn 188, 190 

Tippets v. Walker 209 

Tipton v. Davis 414, 415 

Tisdale v. Harris 210 

Titus v. Neilson 451, 478, 485, 491, 522 

Tolar v. Tolar 241, 415 

Took v. Glascock 280 

Tooker's case 261 

Torrence v. Snider 403, 417, 422 

Totten v. Stuyvesant 327 

Towles' case 182 

Townsend v. Ash 204 

Townson v. Tickell 258 

Trevelyan v. Trevelyan 221 

Triggs v. Daniel 213 

Troup v. Wood 619 

True v. Ranney 118, 142 

Trustees v. Gray 153 

Turner v. Meyers 118, 119 . 

v. Turner 365 

v. Street 441 

Turpin v. The Public Admr. 74 

Tyson v. Tyson 242, 414, 415 

v. Harrington 247, 414, 415 



INDEX TO CASES CITED. 



XXXV11 



u. 








Webb v. Townsend 
Webster v. Vandeventer 




197 
324 


Union Bank v. The State 






210 


Wedge v. Moore 503, 509 


510 


523, 526 


United States v. Rogers 






182 


Weekley v. Weekley 




206 


v. Villato 






175 


Weir v. Humphries 218 


221 


361, 362 


University v. Miller 




144 


168 


v. Tate 
Welch v. Buckins ■ 
v. Cole 


308 


309, 326 
262 
213 


V. 








Weld v. Chamberlaine 




61 


Valleau v. Valleau 






112 


Welker v. Israel 




428 


Van Duyne v. Thayre 


451, 


461, 


464, 


Weller v. Weller 




305 


468, 475 


499 


571 


603 


Welles v. Cowles 




207, 208 


Van Gelder v. Post 






335 


Wells v. Martin 




607 


Van Rennselaer v. Kearney 




269 


West v. West 




182 


Van Vronker v. Eastman 


450, 


460, 


470, 


Westfaling v. Westfaling 




345 






475 


603 


Wheatley v. Calhoun 261, 


263, 


384, 402, 


Van i>. Barnett 






441 


425, 454, 461, 465 


466 


508, 546 


Vartie v. Underwood 


452 


480 


490 


Wheatley v. Best 




361, 567 


Vaughan v. Holdes 






239 


Wheeldale v. Partridge 




429 


v. Atkins 




249 


250 


Wheeler t>. Alderson 




119 


Vaux v. Nesbit 




171 


182 


v. Morris 451, 


461, 


462, 464, 


Verree v. Verree 






454 


483 


508 


522, 571 


Vint v. The Heirs of King 




440 


Wheelock v. Moulton 




210 


Voelckner v. Hudson 






348 


Whithed v. Mallory 
White v. Sabariego 
v. White 


153 


561, 563 

172 

175, 182 


W. 








v. Willis 
■v. Cutler 




198 

198 


Wadsworth v. Wadsworth 






167 


v. Sayre 




326 


Walker v. Schuyler 






201 


Whitehead v. Middleton 


261 


453, 522 


v. Denne 




434 


439 


v. Cummins 


489 


572, 574 


■u. Griswold 450 


460 


523 


527 


Whiting v. Whiting 




270, 279 


Wall v. Williamson 






140 


v. Stevens 




149 


Walls v. Coppedge 






213 


Whitsell v. Mills 




621 


Ward v. Duloney 




118 


120 


Whittington v. Andrews 




190 


v. Fuller 




241 


243 


Wickham v. Enfeild 




109 


Wardrup v. Jones 






172 


Wightman v. Wightman 




119, 141 


Ware v. Washington 




253 


348 


v. Laborde 




175, 182 


Warner v. Van Alstyne 


408, 


422, 


530, 
532 


Wigmore's case 
Wilcox v. Randall 




62, 95 
273 


Warrender v. Warrender 






142 


Wilde v. Fort 




282 


Warren v. Twilley 






336 


Wilkins v. French 453, 


461, 


463, 476, 


Watkins v. Thornton 






308 




508 


517, 522 


Watson v. Donnelly 






167 


Wilkinson v. Parish 




327, 334 


v. Spratley 






207 


Willett v, Beatty 422, 


423, 


454, 530, 


v. Clendenin 


453, 


461, 


465, 






532, 533 






475 


508 


Williams v. Oatea 




117, 141 


Watts v. Ball 




369 


373 


v. Wilson 




172 


Wayland's case 






619 


v. School Directors 


184 


Weaver v. Gregg 




337 


554 


v. Jekyl 




345 



XXXV111 



INDEX TO CASES CITED. 



Williams v. Wray 
v. Cox 
v. Armory 
v. Lambe 
v. Dawson 
v. Woods 

Williamson v. Parisien 
v. Gordon 

Wilson v. Davisson 422, 

v. Smith 
Windle, Matter of 
Windham v. Portland 
Windsor's case 
Wintiington's case 
Winn v. Elliott 
Winslow v. Chiffelle 
Winship v. Lamberton 
Winstead v. Winstead 
Wiscot's case 
Wiswall v. Hall 
Witham v. Lewis 
Woodhull v. Longstreet 

v. Reid 
Wood v. Simmons 
Woods v. Woods 

v. Wallace 454, 
475, 476, 508, 



362 
361 

308, 309 

379, 443 
695 

530, 532 

112 

459 

482, 530, 532, 

535, 572 
202 
167 
312 
345 
243 

404, 426 
537 
613 

592, 593 

226, 233 

617 

245 

328 

411, 452, 466 

622 

115 

468, 472, 474, 

513, 515, 518 



Woodworth v. -Paige 614, 615 

Wooldridge v. Lucas 620 

v. Wilkins 453, 546 

Wooley v. Magie 402, 412, 420, 423, 426 

Wright v. Jennings 1 

v. Lore 118 

v. Trustees, &c. 167 

v. Saddler 167 

v. Thayer 269 

v. Rose 478 

v. Wright 619 

Wynn v. Williams 459 



Yates ». Houston 84, 113, 115 

Yeo v. Mercereau 167, 384, 387, 391, 

402, 411, 420, 452, 602 

Young v. Tarbell 261, 453, 463, 490, 

522, 526 
v. Gregory 621 

v. Naylor 112 

Z. 



Zeigler's Appeal 
Zule ).'. Zule 



410 
112 



THE LAW OF DOWER 



THE 



LAW OF DOWER. 



CHAPTER I. 



OF THE ORIGIN AND NATURE OF DOWER. 



$ 1. Introductory. 

2. Supposed antiquity of dower. 

3. Dower not known to the ancient 
Britons. 

4. Dos of the civil law. 

5. Marriage custom of the ancient 
Germans. * 

6. Similar custom of other northern 
nations. 

7-11. Probable origin of dower in 
England. 

12, 13. Provision for dower in the 
charter of Henry I. 

14,15. In Magna Carta of King John. 

16. In the first charter of Henry III. 

17, 18. In the second charter of Henry 
III. 

19. Additional privileges secured to 
the widow by these charters. 

20. Dower ad ostium ecclesise. 



I 21, 22. Extent to which the wife 
might be endowed. 

23. Power of the husband over his 
wife's contingent dower. 

24. Effect of assignment of dower ad 
ostium ecclesise. 

25. Statutes of Merton and Gloucester. 

26. Dower by the common law. 

27. Dower by the custom. 

28. Dower ex assensu patris. 

29. Dower de la pluis beale. 

30. Abolition of dower ad ostium ec- 
clesise, ex assensu patris, and de la pluis 
beale. 

31. Controversy as to the origin of 
dower in lands. 

32. 33. Object of the provision: a fa- 
vorite of the law. 

34. Concluding observations. 



1. The origin of the custom conferring upon the widow a right to 
enjoy, for the term of her natural life, a certain portion of the lands 
and tenements whereof her husband was seized during the coverture, 
(when consummate, known in legal parlance as an estate in dower,) 
is involved in so much doubt and obscurity, that an attempt to 
investigate its source, and trace its history with any great degree of 
accuracy, would be attended with but little success. 1 The most 

1 "The introduction of dower into England is of such antiquity that its origin 
can not be traced with any degree of certainty." Per Nott, J., in Wright v. Jennings, 
VOL. I. 1 



2 THE LAW OF DOWER. [CH. I. 

learned among those who have devoted time and attention to the 
consideration of this subject, and favored us with the result of their 
researches, differ widely in their conclusions as to the real source 
from which the custom is derived. When we consider, in connection 
with this fact, that the solution of this question is of but little prac- 
tical importance, inasmuch as the right of dower has long been 
recognized, and firmly established in the law, and the general rules, 
and principles defining; regulating, and enforcing it, are, in a meas- 
ure, well understood in practice, an effort to present, in an extended 
form, the conflicting views of the different authors who have dis- 
cussed the question as to its origin and early history, might justly 
be deemed an unprofitable consumption of time. A brief notice of 
the subject, however, with an occasional reference to some of the 
writers — ancient and modern — who have treated it more at length, 
may be regarded as not wholly inappropriate by way of introduction 
to the more practical and important objects and purposes of our 
work. 

2. The terms of entreaty in which Shechem solicited Jacob 1 for 
his daughter Dinah in marriage are sometimes referred to as fur- 
nishing evidence of the great antiquity of dower : " Ask me never 
so much dowry and gift, and I will give according as ye shall say 
unto me ; but give me the damsel to wife." 1 But the "dowry" here 
referred to bore no resemblance to the dower of the common law, 
nor the dowry of the civil law, 2 but was a gift made by the suitor to 
the father, or other near relative of the intended bride. 3 A similar 
custom was observed among the Grecians, until by a refinement of 
manners they began to look upon it as disgraceful. The existence 
of this custom was regarded by Aristotle as one proof that the man- 
ners of the ancient Greeks were barbarous, because they became the 
purchasers of their wives. 4 



1 Bailey's S. C. Law Rep. 277, 278. "It is difficult to trace the origin of dower, 
but all writers admit it to be of great antiquity." Per Lacy, J., in Hill v. Mitchell, 
5 Ark. 608, 610. "So ancient that neither Cote nor Blackstone can trace it to its 
origin." Per Catron, C. J., in Combs v. Young, 4 Yerg. 218. 

1 Gen.xxxiv. 12; Beames' Glanville, p. Ill, note; Crabb's Hist. Eng. Law, 79; 
19 Amer. Jurist, (July, 1838,) pp. 292, 294. 

2 See post, \ 4. 

'Kitto's Cyclop, of Bib. Lit., vol. ii. p. 307, title "Marriage;" Calmet's Diet, of 
the Bible, by Robinson, p. 352, title " Dowry." Other scriptural allusions to this 
custom are referred to in the works here cited. 

< Polit. I. 2, c. 8 ; Crabb's Hist. Eng. Law, 79, 80. 



CH. I.] ORIGIN AND NATURE OP DOWER. 3 

3. It appears quite certain that dower in any form was unknown 
among the ancient Britons. The Welsh were unacquainted with it 
before the statute of Rutland ; l nor was it established among the 
Irish until they adopted the English laws. 2 We are naturally led, 
therefore, to regard the custom as having had its origin in England 
at a date subsequent to the invasion of that country, and as having 
been introduced there by one of the nations whose iron-clad legions 
or rude hordes successively overrun and established themselves upon 
its shores. 

4. It is very questionable whether our jurisprudence is, in any 
degree, indebted to the Roman invasion, or to Roman laws, for the 
establishment of the right of dower. 3 Dower is called, in Latin, by 
Bracton and other early English writers, dos. In the civil law this 
term imported the marriage portion which the wife brought to the 
husband, either in land or in money, 4 and corresponded, to some ex- 
tent, with the maritagium of the common law. 5 The Latin term dos, 
therefore, is properly translated not by the word dower, but by 
dowry, things entirely different in their nature. 6 By the civil law 
the husband acquired only the usus fructus in the portion brought 
by his wife, during the existence of the marriage relation. Upon 
the dissolution of the marriage by the death of the husband, or by 
divorce, the entire property reverted to the wife. He could not 
alien the lands, but was permitted to dispose of the personalty. It 
was required of him, however, that upon the determination of the 
marriage he should restore the full value of any property disposed 
of by him. 7 The civil law, in its original state, had . nothing that 
bore any resemblance to the English law of dower. 8 Yet the ancient 
mode of endowment at the church door, by the husband, is supposed 

1 Enacted May 24, a.d. 1282, 10 Edw. I.; Barrington's Obs. Ano. Stat. 80; see, 
also, pp. 70, 71 ; Hale's Hist. Com. Law, ch. 9, p. 189 : Crabb's Hist. Eng. Law, 
160, 162; Wright's Tenures, 192, note. 

2 Dav. Rep. 136; 1 Thomas' Coke, 442, (*567,) note (A.) 

3 Crabb's Hist. Eng. Law, 79; Beames' Glanville, 111, note. 

* 2 Bao. Abr. 356, note ; 2 Bl. Com. 129 ; 1 Reeves' Hist. Eng. Law, 103 ; 1 Thom- 
as' Coke, 442, (*567,) note (A.) ; Burrill's' Law. Die, Dos, citing Heinecc. El. 
Juris. Civ. lib. 2, tit. 8, \ 465; see Glanville, Book 7, ch. 1. 

« 1 Reeves' Hist. Eng. Law,, 103; Co. Litt. 31, a.; Beames' Glanville, Book 7, 
ch. 1, and note, p. 138. 

6 Macq. H. & W. 151, note ; Crabb's Hist. Eng. Law, 79. 

'2 Bac. Abr. 356, note, citing Vin. 249; Corvin, lib. 23, tit. 3; Honorius, 114, 
115; 1 Thomas' Coke, 442, (*567,) note (A.) 

s 2 Black. Com. 129. 



4 THE LAW OF DOWER. [CH. I. 

by some to be derived from the donatio propter nuptias of the Ro- 
man law, and Bracton calls it expressly by that name. 1 

5. Many writers concur in ascribing the origin of dower in Eng- 
land to the Germans. Among that people the converse of the rule 
of the civil law prevailed, and it was a doctrine with them that a 
woman should bring no fortune in marriage, but the husband was 
required, at the time of the espousals, to bestow a portion of his 
property upon his wife. 2 In describing the customs of the ancient 
Germans, Tacitus says : 3 " The bride brings no portion ; she receives 
a dowry from her husband. In the presence of her parents and 
relations he makes a tender of part of his wealth ; if accepted, the 
match is approved. In the choice of the presents female vanity is 
not consulted. There are no frivolous trinkets to adorn the future 
bride. The whole fortune consists of oxen, a caparisoned horse, a 
shield, a spear, and a sword. She in return delivers a present of 
arms, and by this exchange of gifts the marriage is concluded." 
From this quotation it is to be understood that the property "given 
by the husband consisted in personalty ; and Sir Martin Wright has 
remarked that among the Anglo-Saxons the dower right was confined 
to this species of property,, and that there were no footsteps of 
dower in lands until after the Norman Conquest. 4 We shall have 
occasion to inquire, as we proceed, whether, upon this point, the 
learned writers referred to in the note are not in error. 5 

6. We are told, also, that a custom similar to that attending the 
marriage ceremony of the ancient Germans existed among the Goths, 6 
and a learned writer shows it to have formed a part of the laws of 
the Visigoths and Burgundians. 7 Another author, whose views are 
entitled to consideration, is of opinion that the English would prob- 
ably borrow such an institution from the Goths and Swedes, rather 
than from any other of the northern nations. 8 



1 Burrill's Law Diet., Dower; Long's Discourses, 99-102; Bracton, fol. 92, b.; 
see Crabb's Hist. Eng. Law, 79. 

2 1 Greenl. Cruise, p. 164, (*151,) § 1; 1 Thomas' Coke, 442, (*567,) note (A.); 
Hein. Elem. Jur., ch. 1, s. 5 ; 4 Kent, 36, note a.; Lambert on Dower, 10. 

3 De Mor. Germ. 18, Murphy's translation. 

* Wright's Ten. 191, 193, quoting Lord Bacon's Hist. Eng. Gov. 104, 146, 147 ; 
4 Kent, 36, note; Stearns' Real Act, 274. 

6 Post, \\ 9-13. 

6 01aus Magnus; 4 Kent, 36, note; Beanies' Glanville, 112, note. 

7 Stuart's View of Society; 4 Kent, 36, note. 

8 Barrington's Obs. Ane. Stat. 9, 10; 4 Kent, 36, note. " The laws of Henry I. 



CH. I.] ORIGIN AND NATURE OP DOWER. 5 

7. It seems ^generally agreed, however, that many of the old Eng- 
lish customs are to be traced to and in fact were introduced by the 
Anglo-Saxons, and that the people of England are indebted to their 
German ancestors for much that is valuable in their constitution and 
laws. 1 It appears highly probable that in the marriage custom de- 
scribed by Tacitus 2 we have the origin of the right of dower in Eng- 
land; for it is not unreasonable to suppose that when those northern 
nations established themselves in the southern parts of Europe they 
carried their customs with them ; nor that, when a permanent interest 
was acquired in lands, the dower of the widow was extended and 
applied to real estate. 3 Neither would it. be strange, if, when they 
came to reduce their customs to writing, they fixed the portion of 
the husband's lands which he might allot for his wife's dower. 4 The 
Longabardic Code directed that it should consist of a fourth part, 
and the Gothic of a tenth. 5 It is also said that the Saxons on the 
Continent allowed the wife the half of what the husband acquired, 
besides the dower which was assigned to her at the marriage. 6 

8. The precise time when dower in lands was introduced cannot 
be ascertained. Blackstone 7 is of opinion that it was entirely un- 
known in the early part of the Saxon constitution, and he states 
that in the laws of King Edmond the wife is directed to be supported 
wholly out of the personal estate. That dower in lands was known 
during the reign of Canute the Dane, who ascended the throne a.d. 
1017, 8 seems very clear from a quotation furnished by Sir Matthew 
Hale from one of the laws of that prince: "Among the laws of King 
Canutus, in Mr. Lombard, (Fo. 122, ,123,) is this law, viz., No. 68. 
'Sive quis incuria sive morte repentina fuerit intestato mortuus, 
dominus tamen nullam rerum suarum partem (prseter earn quae jure 



allowed a woman a third for her dower ; which corresponded with what was allowed 
by the Sicilians and Neapolitans, and after them by the Normans and Scotch. — 
LL. Hen. I., p. 70; Grand Cont. de Norm. c. 102; Reg. Maj. 1, 2, c. 16." Crabb's 
Hist. Eng. Law, 80; Beames' Glanville, 112, note. 
1 1 Black. Com. 35, 36; Murphy's Tacitus, xlvi., note 2. 

* Ante, I 5. 

» Stuart's View of Society, 29, 30, 223-227; 4 Kent, 33, note a.; 1 Greenl. Cruise, 
p. 164, (*152,) \\\,1;1 Thomas' Coke, 442, (*567,) note (A.) ; Lambert on Dower, 10. 

* 1 Greenl. Cruise, p. 164, (*152,-) \ 1. 
6 Ibid.; Beames' Glanville, 112, note. 

e Crabb's Hist. Eng. Law, 80, citing LL. Sax. tit. 8. 

' 2 Com. 129, citing Wilk. 75. 

s 1 Hume, 80. He died a.d. 1035; Ibid. 83, 84. 



6 THE LAW OF DOWER. [CH. I. 

debetur hereoti nomine) sibi assumito. Verum eas judicio suo uxori, 
liberis & cognatione proximis juste (pro suo cuique jure) distribute' 
Upon which law we may observe these five things, viz. : First, that 
the wife had a share as well of the lands, for her dower, as of the 
goods." 1 According to the Danish historians, dower was introduced 
into Denmark by Swein, the father of Canute^ out of gratitude to 
the Danish ladies who sold all their jewels to ransom him when taken 
prisoner by the Vandals, 2 and Blackstone suggests that dower in 
lands may possibly be with the English the relic of a Danish custom. 3 
Perhaps the law of King Canute above referred to may give some 
plausibility to this supposition. 

9. But whatever the fact may be with regard to the Danish cus- 
tom, it is certain that dower in lands, in some localities at least, was 
known to the Saxons. Cruise says that by the laws of King Ed- 
mund, whose reign commenced a.d. 941, 4 a widow was entitled to a 
moiety of her husband's property for life, but which she forfeited by 
a second marriage. 6 And he refers to a Saxon charter found in the 
Appendix to Somner's Gavelkind, entitled Qhirographum Pervetus- 
tum de Nuptiis eontrahendis et dote constituendd, in which par- 
ticular lands, together with thirty oxen, twenty cows, ten horses, 
and ten bondmen are appointed for the wife's dower. Blackstone 
also shows that in gavelkind tenure the widow was entitled to a con- 
ditional estate in one-half the lands of her husband, the condition 
being that she should remain chaste and unmarried. 6 

10. Were it not for the uncertainty relating to the period when 
the "Mirror of Justices" was written, there are passages contained 
in that book which might assist in determining the question as to 
the date of the introduction into England of dower in real estate. 
Among the ordinances said to have been made by the estate of the 
realm, composed of the Earls of the kingdom who were accustomed 
to assemble at London under the regulations established by King 
Alfred/ is the following : 8 " It was ordained, That every one might 



1 Hale's Hist. Com. Law, 251. See Barrington's Obs. Anc. Stat. 10. 

' 2 Black. Com. 129, citing Mod. Un. Hist, xxxii. 91. 

3 Ibid. * 1 Hume, 58. 

5 1 Greenl. Cruise, p. 164, (*152,) \ 2; Crabb's Hist. Eng. Law, 80, citing LL. 
Edm. c. 2, apud Wilk.; Beames' Glanville, 112, note. 

6 2 Com. 129, citing Somner's Gavelk. 51. 

' Mirror of Justices, 6-15. 8 Ibid. p. 11. 



CH. I.] ORIGIN AND NATURE OF DOWER. 7 

endow his wife ad ostium ecclesise, or of the monastery, without the 
consent of his heirs ; that heir females nor widows should not marry 
themselves without the assent of their lords, because the lords were 
not bound to take the homages from their enemies or other unknown 
persons, and the same is forbidden upon pain of forfeiture whether 
their parents were consenting thereunto or not ; and that widows, in 
case they marry without the consent of the guardians of the lands, 
should lose their dowries; that those also should be disinherited or 
lose their dowries that married before. Widows, nevertheless this, 
should not forfeit their inheritance for whoredom, and that the 
eldest son should forfeit nothing to the prejudice of his ancestors nor 
his heirs, living the ancestor whose heir apparent he is." The date 
of this ordinance is not given, and the period when the book itself 
was written is a disputed point. By some it is pronounced older 
than the Conquest. 1 Others have ascribed it to the time of Edward 
II. 2 It seems probable, as suggested by Mr. Reeves, 3 that both these 
opinions are partly right, and that a writer in the latter part of the 
time of Edward I., or early in the reign of Edward II., took an 
ancient volume bearing the name of the "Mirror," and worked it 
into the book we now have, promiscuously blending the antiquated 
law with that of the time in which it was revised. A very cursory 
examination of the book will show that a considerable portion of it, 
at least, was prepared at a period long posterior to the Conquest. 4 
There is good reason, however, to believe that other portions of it 
belong to a much earlier date, and it is not unlikely that the ordi- 
nance above quoted should be included in this category. For while 
many things contained therein are, in substance, carried into the 
Great Charter, yet the author positively declares that the ordinances 
to which he there refers " were not put into writing and certainly 
published," 6 which is not true of the Great Charter. The points of 
resemblance between the ordinances recited in this work and Magna 
Carta are susceptible of simple and reasonable explanation. "For," 
says Blackstone, "it is agreed by all our historians that the Great 
Charter of King John was for the most part compiled from the 
ancient customs of the realm, or the laws of King Edward the Con- 



1 By Lord Coke and Nathaniel Bacon. See 2 Reeves' Hist. Eng. Law, 358, note. 

2 See Barrington's Obs. Ano. Stat. p. 3 ; 2 Reeves' Hist. Eng. Law, 358. 

3 2 Reeves' Hist. Eng. Law, 358 et seq. 

*■ See pp. 251 to 284, inclusive. 6 Page 6. 



8 THE LAW OF DOWER. [CH. I. 

fessor, by which they usually mean the old common law which was 
established under our Saxon princes, before the rigors of feudal 
tenure and other hardships were imported from the Continent by the 
kings of the Norman line." 1 If any of the ordinances set forth in 
the Mirror sprung from Magna Carta, or if that instrument were in 
existence when the original work was written, it is exceeding strange 
that no allusion is made thereto in that part of the text to which we 
have above particularly referred. We shall notice, as we proceed, 
that even in the Great Charter of Henry I. the right of dower in 
lands is recognized as a known existing institution, rather than as 
being created thereby; 2 for, while distinct allusion is made to the 
custom, there is no attempt to define the extent of the right, nor to 
declare in what it shall consist. 

11. Previous to the granting of the English charters, the judicial 
code consisted of that collection which had probably been commenced 
by Alfred, continued by Canute and Edgar, and completed and 
established by Edward the Confessor. 3 After the subjugation of the 
Danes by Alfred, about a.d. 877 or 890, three systems were in use 
in England. Northumberland, in which the Danes settled, was gov- 
erned by a peculiar law called the Dane-Lage; Alfred compiled 
another code, entitled West-Saxon-Lage, for the province of Wessex ; 
and the local constitutions of the kingdom of Mercia were observed 
in the counties nearest to Wales, and called Mercen-Lage. 4 In the 
reign of Edgar, about a.d. 966, these different systems were formed 
into one body common to all England. The statutes thus established 
were confirmed by Canute, and the whole system was completed by 
Edward the Confessor, about a.d. 1065, and to the latter prince is 
attributed the revival of the Anglo-Saxon judicature at that date, 
which was only about one year prior to the Norman Conquest. It 
was these ancient customs of the realm, thus moulded into a general 
system of laws, that the English were so desirous to have restored 
after the Conquest, 5 and which constituted the basis and substance 
of the charters eventually exacted by them from the princes of the 



1 Intro, to the Charters, Black. Law Tracts, 289. Mr. Barrington dissents from 
this doctrine, and maintains that the clergy and barons who were active in procur- 
ing the charter had every motive to, and did preserve their rights under the feudal 
liws introduced with the Conquest.— Obs. Anc. Stat. 7-9. 

a Post, \\ 12, 13. s Thomson's Charters, 396. 

* Thomson's Charters, 396. 6 Ibid. 397. 



CH. I.] ORIGIN AND NATURE OF DOWER. 9 

Norman line. 1 As all these charters recognize dower in lands as an 
existing legal right, it is reasonable to suppose that it did, in fact, form 
one of the ancient customs of the Anglo-Saxons, and was afterwards 
adopted by the Normans as one of the legal institutions of the land. 2 

12. William the Conqueror confirmed a portion of the laws of Ed- 
ward, not, however, without making some alterations therein. 3 He 
died in the year 1087, and was succeeded by William Rufus. No 
concessions were obtained from this king, but about the year 1101, 
in the next reign, was published the celebrated charter of Henry I. 4 
That part of the charter which relates to dower is as follows : " Et 
si mortuo viro uxor ejus remanserit, et sine liberis fuerit, dotem suam 
et maritationem habebit, et earn non dabo marito nisi secundum velle 
suum. Si vero uxor cum liberis remanserit, dotem quidem et marita- 
tionem habebit, dum corpus suum legitime servaverit; et earn non 
dabo nisi secundum velle suum." 5 "And upon the death of a man, 
if his wife be left without children, she shall have her dower and 
marriage portion ; and I will not give her again in marriage except- 
ing by her own consent. But if the wife be left with children, she 
shall then have her dower and marriage portion whilst she lawfully 
preserves her body ; and I will not dispose of her in marriage but 
according to her own will." 6 

13. Thus, after the lapse of about thirty-five years only, from the 
date of the Conquest, we find, in a charter granted by the sovereign 
of the realm to conciliate a people who were importuning him for a 
restoration of their ancient customs, an explicit recognition of the 
right of dower. It is hardly probable that a provision so general in 
its terms was intended solely for lands held in gavelkind, unless, in- 
deed, as Mr. Selden supposes, that tenure, before the Conquest, was 
a general custom of the realm. 7 The opinion that dower in lands 
was generally known throughout the kingdom anterior to* the Con- 
quest seems to be supported by the fact that so recently thereafter, 
a recognition of the right was incorporated into an instrument of so 
much importance as the great charter of Henry I. And Mr. Cruise 



i Ante, \ 10. 

2 1 Thomas' Coke, 442, (*567,) note (A.); 1 Greenl, Cruise, p. 164, (*152,) \ 2. 

3 Thomson's Charters, 398; see, also, pp. 2, 3. 
* Ibid. 400 ; 1 Hume, 168. 

5 Bl. Intro, to the Great Charters, Law Tracts, 286, note d.; Anc. Laws, vol. i. 
p. 499. 
<> Thomson's Charters, 403. . ' 2 Black. Com. 84. 



10 THE LAW OE DOWER. [CH. I. 

unhesitatingly expresses himself of that belief. 1 The charter of 
Henry I. was confirmed by Stephen, and afterward by Henry II. 2 

14. Magna Qarta of King John, which is popularly known as 
The Great Charter, was granted June 15th, 1215, 3 or about one hun- 
dred and fourteen years after the charter of Henry I. In the interim 
was composed the Tractatus de Legibus et Consuetudinibus Regni 
Anglim of Glanville, the sixth book of which is upon the subject of 
dower. This treatise was written during the reign of Henry II., and 
probably about a.d. 1187. 4 From this work it appears that the 
mode of endowment then in common use was ad ostium ecclesise, or 
at the door of the monastery. 5 Indeed, Mr. Reeves says the term 
dos or dower, in its common and usual sense, signified that property 
which a freeman gave his wife, ad ostium ecclesiee, at the time of the 
espousals. 6 We have already seen that, according to the " Mirror of 

1 1 Greenl. Cruise, p. 164, (*152,) sec. 2. 

2 Thomson's Charters, 409. 

8 Black. Chart, xi.; Thomson's Chart. 63. 

* 1 Reeves' Hist. Eng. Law, 223 ; see Barring. Obs. Anc. Stat. p. 3, note. 

5 Lib. 6, c. 1. 

B 1 Hist. Eng. Law, 100; and see 4 Kent, 36; 1 Greenl. Cruise, p. 164, (*152,) 
sec. 3; 1 Thomas' Coke, 442, note (A.) In the Liber de Antiquis Legibus, reference 
is made to a charter of Robert de Gant of 1168, in which tenure in dower is thus 
described: "Avicia, mater Willelmi de Curci, tenet feoda duorum militum." Pref. 
Liber de Antiquis Legibus, Camden Soc. Pub. lvi. In the same publication we have 
the following account of the book here referred to : " The manuscript known as the 
Liber de Antiquis Legibus, now deposited in the Record Room, Town Clerk's Office, 
at the Guildhall of the City of London, is a small folio, nine inches and a half in 
length, and seven inches in breadth, the binding of white leather, covering wooden 
backs, and containing 159 leaves of parchment, paged continuously with Arabic cy- 
phers. The index prefixed to the volume indicates the successive chapters which it 
was originally intended should compose the volume ; but the first chapter and three 
others in the body of the manuscript were left blank, though since written over by 
matter of later insertion. The original portion of this manuscript will have been 
written throughout in Latin in the year of our Lord 1274, 2 Edward I., and the re- 
mainder added at different intervals in French, which later date will also apply to 
the references in the margins. A considerable portion of this volume is filled with 
extracts from the Gesta Regum Anglorum of William, the monk of Malmsbury, under 
titles of the writer's own composition. At the top of the page, the reverse of folio 63, 
commence the Chronicles of the Mayors and Sheriffs of London, and the events 
which occurred in their times from the year 1188 to the year 1274, up to the month 
of August, the preparations for the coronation of Edward I., who landed at Dover 
the 2d of that month, being the subject-matter of the closing paragraphs of this val- 
uable portion of its contents. The title of the Book of Ancient Laws is only appli- 
cable to the chapters 38 and 44 ; the first of which contains the regulations pre- 
scribed by the name of Assize, as to the inhabitants of London in respect of their 



CH. I.] ORIGIN AND NATURE Of DOWER. 11 

Justices," this was the description of dower ordained in the time of 
the ancient English kings. 1 And the same author complains "that 
no woman is dowahle if she have not been solemnly espoused at the 
door of the monastery, and there endowed," and that Magna Carta 
is defective in failing to provide a remedy for this injustice. 2 The 
changes wrought in this species of dower during succeeding reigns, 
including the adoption of the remedy suggested by the Mirror, we 
will note hereafter. 

15. Chapter VII. of the Great Charter of King John is as follows : 
"Vidua, post mortem mariti, sui statim et sine difflcultate, habeat 
maritagium et hsereditatem suam ; nee aliquid det pro dote sua, vel 
pro maritagio suo, vel hsereditate sua, quam hsereditatem maritus 
suus et ipsa tenuerint die obitus ipsius mariti ; et maneat in domo 
mariti sui per quadraginta dies post mortem ipsius, infra quos assig- 
netur ei dos sua." 3 "A widow, after the death of her husband, shall 
immediately, and without difficulty, have her marriage and her in- 
heritance ; nor shall she give anything for her dower, or for her 
marriage, or for her inheritance, which her husband and she held at 
the day of his death : and she may remain in her husband's house 
forty days after his death, within which time her dower shall be 
assigned." 4 

16. The first charter of Henry III. bears date November 12th, 

buildings and dwellings, and the second the Provisions made by the Lord Henry, 
the King, son of King John, and his Council, to amend the English laws, of which 
the larger portion had been ordained in the time of the Earl of Leicester, in the 
year of the Lord 1264, after the battle of Lewes, fought on Wednesday, the four- 
teenth day of May." Ibid. p. 1. 

1 Ante, sec. 10; Mirror of Justices, p. 11. 

2 Pp. 253, 254. 

3 Black. Charters, xiii.; Thomson's Charters, 68. 

4 Thomson's Charters, 69. Of date 5th November, 1212, are Letters Close to the 
sheriffs of Hertford and Kent, respecting the lands of Henry Fitz-Aylwin, in this 
form: " Rex Vicecomiti Hertfordie, etc. Precipimus tibi quod omnes terras unde 
Henricus filius Ailwini Major Londoniarum in Ballia tua saisitus fuit anno et die 
quo obiit, unde Willelmus Aguillun habuit saisinam, capias in manum nostram ex- 
ceptis terris que pertinent ad dotem vxoris predicti Majoris." Pref. Lib. de Antiq. Leg. 
Camd. Soc. Pub. xii. ; see ante, \ 14, note 6. On the 17th day of the same month 
the sheriff of Hertford, the sheriff of Surrey, the mayor and sheriffs of London, and 
the sheriff of Kent, by Letters Close before the Barons of the Exchequer, were com- 
manded without delay to cause Margaret, who had been the wife of Henry Fitz-Ayl- 
win, late mayor of London, to have her reasonable dower, which was belonging to 
her, of the lands and tenements which had been those of the same Henry, late her 
husband, in their bailiwicks. Ibid. 



12 THE LAW OP DOWER. [CH. I. 

a.d. 1216. 1 Chapter VII. of King John's charter is retained ver- 
batim, but there is added thereto the following provision : " Nisi 
prius ei fuerit assignata vel nisi domus ilia sit castrum et si de castro 
recesserit statim provideatur ei domus competens in qua possit hon- 
este morari quousque dos sua ei assignetur secundum quod predictum 
est." 2 " Unless it shall have been assigned before, or excepting his 
house shall be a castle ; and if she departs from the castle, there 
shall be provided for her a complete house in which she may de- 
cently dwell, until her dower shall be assigned to her as aforesaid." 3 
It will be observed that in neither of the foregoing charters is any 
mention made as to what proportion of the husband's lands shall be 
assigned for the widow's dower ; nor as to whether she shall be en- 
dowed of all lands held by him during the coverture, or simply of 
those held at the time of the espousals. 

17. This omission, however, is supplied in the second charter of 
Henry III., 4 which was granted in the following year. 5 The entire 
chapter above transcribed, as confirmed by the first charter of 
Henry III., was incorporated into this instrument, together with 
this additional clause : " Et habeat rationabile estuverium suum in- 
terim de communi. Assignetur autem ei pro dote sua tercia pars 
totius terre mariti sui que sua fuit in vita sua, nisi de minori dotata 
fuerit ad ostium ecclesie." 6 "And she shall have her reasonable 
estover within a common term. And for her dower shall be assigned 
to her the third part of all the lands of her husband, which were his 
during his life, except she were endowed with less at the church 
door." 7 The original text was also changed in one other respect. 

1 Thomson's Charters, 105; Black. Charters, xxvi. 

2 Black. Charters, xxviii. c. 7. 

3 Thomson's Charters, 108, 109. 

4 It appears, also, that by a law of Henry I. the widow's dower was fixed at one- 
third.— LL. Hen. I. ch. 70; Crabb's Hist. Eng. Law, 80. 

5 Black. Charters, xxxv.; Thomson's Charters, 118. The Book of Ancient 
Laws, before referred to, contains the following order for the assignment of dower, 
made in the same year that this charter bears date — 1217 : " De dote. — Mandatum 
est Roberto de Cardinania quod nisi Comes de Insula sine dilatione plenariam seisi- 
nam faciat Falkesio de Breante" et Margarete uxori ejus de rationabili dote que ipsam 
Margaretam contingit per Baldwinum de Insula, quondam virum ipsius Margarete 
et filium ipsius Comitis, tunc dotem suam eis habere faciat sine dilatione secundum 
consuetudinem regni Anglie. Et quum, etc. Teste ipso Comite apud Oxoniam xx. 
die Februarii." Pref. Lib. de Antiq. Leg. Camd. Soc. Pub. lvii. 

6 Black. Charters, xxxvii. c. 7 ; 2 Coke's Inst. 16, cap. 7. 
' Thomson's Charters, 121. 



CH. I.] ORIGIN AND NATURE OF DOWER. 13 

It ■was declared that the widow might remain in the principal mes- 
suage of her husband for forty days after his death, instead of " his 
house" as before provided. 1 A third charter was obtained from 
Henry III., bearing date February 11th, 1224, 2 but the chapter 
relating to dower was not changed in any particular. 3 A charter 
was also granted by Edward I., October 12th, 1297, 4 but no varia- 
tion was made thereby in the right of dower. 6 

18. The Great Charter of King John, as amended and confirmed 
in the reigns of Henry III. and Edward I., is that usually prefixed 
to the various editions of the English statutes, 6 and the same given 
in Coke's Institutes. 7 Mr. Cruise says that nothing is mentioned in 
King John's Magna Carta, nor in the first charter of Henry III. 
respecting dower. 8 This is manifestly an error, for, as we have seen, 9 
the right of dower is expressly recognized in both these charters. 
But it is true that in neither of them is there anything said as to the 
extent to which the widow might be endowed, and perhaps it is this 
omission to which that writer refers. And when Chancellor Kent 
observes that "in Magna Carta (c. 7) the law of dower in its modern 
sense and enlarged extent, as applying to all the lands of which the 
husband was seized during the coverture, was clearly defined and 
firmly established," 10 it is obvious that he does not refer to Magna 
Carta proper of King John, but to that instrument as it was amended 
and confirmed in the time of Henry III. 

19. The word maritagium, as it occurs in the original text, is a 
technical expression of peculiar signification. Before the Norman 

1 Thomson's Charters, 121. 

2 Black. Charters, xliv.; Thomson's Charters, 38, 131. " On the Fine Roll of 
the 9th Hen. III., (1224,) under the heading ' Pro Margareta que fuit uxor Falcasii,' 
we have a copy of a precept to Thomas de Cyrences, that he take with him honest 
and lawworthy men of the vicinity of Buckland, Bickleigh, Walkhampton, and Co- 
lyton, which manors William, Earl of Devon, had assigned in dower to Margaret de 
Reviers, when Baldwin his son married her, and by their view and testimony, cause 
all the corn growing upon the land of the said manors to be valued, and if the said 
Margaret was willing to receive the corn at the same price, to answer thereof to the 
king at the terms appointed by him, then to leave to her the aforesaid corn ; and if 
not, then retaining the aforesaid corn to the king's use, to cause the aforesaid Mar- 
garet to have seizin of the said manors, having first taken security from her as to 
the safe custody of the said corn ; and which is dated from Winchester, 11th day of 
March." Pref. Lib. de Antiq. Leg. Camd. Soc. Pub. lix. 

8 Thompson's Charters, 134. * Ibid. 145. 5 ibid. 148. 
"Ibid. 394. '2 Inst. 1. 

s 1 Greenl. Cruise, p. 165, (*152,) sec. 4; see, also, 1 Washb. R. P. p. 147, note 6 

9 Ante, U 15 > 16 - 10 4 Com - 36 - 



14 THE LAW OF DOWER. [CH. I. 

Conquest a widow had no power to marry again until the expiration 1 
of one year after the death of her husband. 1 Coke says it was cer- 
tainly the law of England before the Conquest that a widow should 
continue a whole year in her husband's house, within which time her 
dower was to be assigned her. 2 A similar restriction as to marriage 
is said to have prevailed in Denmark and Sweden, and anciently in 
Germany. 3 By the civil law widows were forbidden to marry within 
ten months after their husbands' decease. 4 But when it was declared 
by the Great Charter that " a widow, after the death of her husband, 
shall immediately, and without difficulty, have her marriage and her 
inheritance," the then existing restriction upon marriage in Eng- 
land was at once and forever removed. 5 The widow was permit- 
ted to tarry forty days in the principal messuage of her husband, 
and this was called her quarantine ; although she was privileged to 
marry again within that period, yet if she did so, her widowhood 
was past and she lost her quarantine. 6 The fine which, under the 
feudal system, was exacted from the widow by the lord, for the as- 
signment of her dower, was also abrogated by Magna Carta. 7 

20. If, as has been supposed by some writers, the rule among the 
Saxons entitled the widow to a moiety of her husband's lands for her 
dower, 8 it was greatly modified in England at some period prior to 
the reign of Henry II. We have already observed that during that 
reign the dower in common use, as stated by Glanville, was ad ostium 
eeclesiee? By that mode of endowment the widow was not permitted 
to take more than one-third the lands held by the husband at the 
time of the espousals. He might endow her with less. If he at- 
tempted to bestow more, the law reduced the endowment to one-third. 
If he endowed her generally of all his lands, without naming the 
specific lands or proportion assigned her, she was then entitled to 
one-third of the freehold of which he was seized at the time of the 



i Thomson's Char. 172. 2 Co. Lift. 32, b. 

s Thomson's Char. 172; Barrington's Obs. Anc. Stat. 8-10, 5th edition. 

4 L. 2 Cod. de see. Nuptiis ; Taylor's Elem. Civil Law, 348 et seq.; Cooper's Jus- 
tinian, 427, notes; Adams' Roman Antiq. 335, 7 N. Y. ed. 

5 2 Inst. 18 ; Thomson's Char. 172. 

« Co. Litt. 32, b., 34, b.; 9 Vin. Abr. 272, tit. Dower, (I. a.) pi. 2. Mr. Thomson 
says she thereby forfeited her dower, Char. 172. In this he is evidently mistaken. 

'Cap. 7; 2B1. Com. 135. 

a See ante, \\ 6, 9; 1 Greenl. Cruise, p. 164, (*152,) sec. 2, and p. 167, (*154,) 
sec. 8. 

» Ante, I 14; Glanville, Lib. 6, c. 1. 



CH. I.] ORIGIN AND NATURE OF DOWER. 15 

marriage. This was termed her dos rationabilis, or reasonable 
dower* 1 If a man had but a small freehold at the time of the es- 
pousals, he might afterwards augment the dower to a third part out 
of purchases subsequently made ; but this required a special engage- 
ment before the priest to endow her of his future acquisitions, and if 
no such engagement were made, although the husband had then but 
a small portion of freehold, and afterwards made large acquisitions, 
the widow received no benefit from the latter. 2 And if a husband 
had no lands, an endowment in goods, chattels, or money, at the 
time of the espousals, was a bar of any dower in lands which he 
afterwards acquired; for it was a general rule that where dower was 
specially assigned ad ostium ecclesise, the widow could demand no 
more than what was then and there assigned. 3 

21. The second charter of Henry III. provided that the widow 
should be endowed of one-third of all the lands of her husband, which 
were his during his life, except she were endowed with less at the 
church door. 4 The consequence of this exception was, that if the 
husband endowed his wife ad ostium eeclesise, she was limited to 
such lands as were specifically assigned to her, not exceeding one- 
third of his entire freehold, or if the endowment were general, then 
to the third part of the freehold which the husband held in demesne 
on the day of the espousals. 6 It was only where there was no endow- 
ment at the time of the marriage that the widow could claim her 
dower in all the lands held by the husband during the coverture. 
Indeed Bracton, whose De Legibus et Oonsuetudinibus Anglise is 
supposed to have been written after the forty-sixth year of Henry 
III., 6 notwithstanding the provision of Magna Carta, before referred 
to, in his definition of the right of dower, says it must be " the third 
part of all the lands and tenements which a man had in his demesne 
and in fee, of which he could endow his wife on the day of his espou- 



i 1 Reeves' Hist. Eng. Law, 100-2 ; 2 Black. Com. 133-4; Glanville, Lib. 6, c. 1; 
Bract. Lib. 2, c. 30, \ 6 ; 4 Kent, 36; 1 Greenl. Cruise, p. 164, (*152,) sec. 3; Co. 
Litt. 33, b. 

2 Glanv. Lib. 6, c. 1 ; Brae. Lib. 2, c. 39, <S 6 ; 1 Reeves' Hist. Eng. Law, 101 ; 
2 Black. Com. 134. 

s Glanv. Lib. 6, c. 2; 2 Bl. Com. 134; 1 Reeves' Hist. Eng. Law, 101 ; 1 Greenl. 
Cruise, p. 164, (*152,) sec. 3. 
: * Cap. 7 ; ante, ? 17. 

6 2 Bl. Com. 134; Glanville, Lib. 6, eh. 2. 

• 1 Reeves' Hist. Eng. Law, 90. 



16 THE LAW OF DOWER. [CH. I. 

i 

sals." 1 A similar rule is said to be contained in the 101st chapter of 
the Grand Constumier of Normandy, 2 a work supposed to have been 
produced a short time after the publication of the treatise of Brac- 
ton. 3 But Littleton expressly lays it down as the common law rule 
in the time of Edward IV. that the wife should have for her dower 
one-third of the lands which were her husband's during the espou- 
sals; 4 also that she should have her election after her husband's 
death to accept the dower assigned her at the church door, or refuse 
it, and claim her dower at common law. 6 He further says that a 
man might endow his wife ad ostium ecclesise, of the whole, the half, 
or any lesser part of his lands, 6 which is manifestly a change in the 
law as it existed in the time of Glanville. 7 

22. It is to be observed that in enlarging the right of dower, 
Magna Carta, as altered and confirmed by Henry III., extends it 
to lands held by the husband during his lifetime* This expression 
appears never to have been taken literally, but has always been 
understood to mean the lands held by the husband during the cover- 
ture? Any other construction would have involved titles to real 
estate in singular uncertainty and confusion. Formerly, also, the 
capital messuage was exempt from dower, and was to remain whole 
and undivided. 10 

23. Although a woman had no power, during the life of her hus- 
band, to dispose of her inchoate interest in the lands of which she 
had been endowed ad ostium ecclesise, yet the husband might alien 
his wife's dower interest in any manner he saw proper. If, however, 
the wife declared her dissent therefrom, she might claim her dower 
after her husband's death, and upon proof of such dissent could recover 
it against the purchaser. In such case, also, the heir was bound to 
deliver to the widow the specific dower assigned her, if he could ; if 
he could not procure the identical land, he was to make her a recom- 
pense equal in value ; and if he delivered to her the land which had 



1 Fol. 92; 1 Reeves' Hist. Eng. Law, 312. 

2 2 Bl. Com. 133 ; 1 Greenl. Cruise, p. 165, (*152,) sec. 3. 
-" 1 Reeves' Hist. Eng. Law, 224. 

* 1 Inst. sec. 37. 5 1 Inst. sec. 41 ; 2 Bl. Com. 134. 

« 1 Inst. sec. 39. ' Co. Litt. 36, a. 

s Cap. 7; 2 Bl. Com. 134; 1 Greenl. Cruise, p. 165, (*152,) sec. 4. 
9 2 Inst. sec. 37; 1 Reeves' Hist. Eng. Law, 242; Beames' Glanville, 113, note; 
4 Kent, 36. 
i° 1 Reeves' Hist. Eng. Law, 102. 



CH. I.] ORIGIN AND NATURE OF BOWER. 17 

been sold, he was in like manner bound to recompense the pur- 
chaser. 1 

24. Where dower was specifically assigned ad ostium eeclesise, 
the wife, after the death of her husband, might enter upon the lands 
of which she had thus been endowed without any further assignment. 2 
And this was greatly to her advantage, for thereby she was relieved 

1 l Reeves' Hist. Eng. Law, 101-2; Crabb's Hist. Eng. Law, 81; Glanv. Lib. 6, 
c. 3, 13. Mr. Beames maintains that, according to the true rendering of the text of 
Glanville, the widow was not permitted to recover her dower as against a purchaser 
from her husband. The following is his translation of the passage in question ! 
"And so far is the woman bound to obey her husband, that if her husband chooses 
to sell her dower, and she refuses her consent, and the dower be afterwards sold and 
bought under these circumstances, the wife can not, after the death of her husband, 
claim her dower as against the purchaser, if she confess in court, or is convicted 
upon the fact that, although she opposed her husband, the dower was sold by him." 
To this he subjoins the following note : " I have followed all the MS. and the edition 
of Glanville published in 1604, in admitting not into the text. I submit that this 
reading is sanctioned, not merely by the previous part of this present chapter, but 
ako by the 13th chapter of the present book. Yet the Regiam Mafestatem makes the 
validity of such a sale to depend upon the wife's consent — but, if she made no oppo- 
sition to it, it seems to have been tantamount to a positive consent, (L. 2, c. 15, 16,) 
From considering the 13th chapter of the present book, one thing seems clear — that 
in case the husband disposed of his wife's dower, the heir was bound to render an 
equivalent to the purchaser, if the land was recovered from him, or to the wife, if it 
was not so. As to the heir, therefore, it was immaterial ; and so, perhaps, it might 
be considered with respect to the wife and purchaser in case the heir, as heir, was 
solvent; but if otherwise, it was highly material to ascertain whose right, that of the 
wife, or that of the purchaser, was paramount. Bracton is more explicit than our 
author ; and from him we collect that a distinction should be made whether the dower 
was originally named or not. In the former case the woman could pursue the iden- 
tical dower, and wrest it from the hands even of.a purchaser. In the latter she was 
obliged to resort to the heir for an equivalent. In the first case, from the moment 
the dower was named, the woman acquired a certain fits et dominium, as Bracton ex- 
presses it, in the property, which accompanied it into whatever hands it afterwards 
went, and gave her the right of following and reclaiming it. But, if the endowment 
were general, and no particular land specified, the wife did not acquire any imme- 
diate right, on account of the uncertainty, it being questionable what identical allot- 
ment would fall to her share until the assignment took place, (Bracton, 300, b.)" 
Beames' Glanville, 117, note. In this connection, and as reflecting some light upon 
this controverted point, I also reproduce chapter 13 of the sixth book of Glanville, as 
translated by the same writer: "It must also be understood, that if the husband cf 
any woman, after having endowed her as his wife, should sell her dower to any one, 
his heir shall be obliged to deliver the dower to the woman, if he possibly can; at 
the same time he shall be bound to render a reasonable equivalent to the purchaser 
on account of the sale or gift of his ancestor. If, however, the heir bo unable so to 
do, he shall be bound to make to the woman a reasonable compensation." 

n Inst. <S 39. ' 

VOL. I. 2 



18 THE LAW OF DOWER. [CH. I. 

of the burdens and delays incident to a suit to recover her dower, in 
the prosecution of which, as Coke says, "her life might be spent, 
together with her money also;" 1 for although it was provided by 
Magna Carta that dower should be assigned her within forty days 
after her husband's death, yet until the passage of the statute of 
Merton there was no penalty inflicted nor damages awarded for 
withholding the dower, and consequently the widow was frequently 
subjected by the tenant to unjust delays and oppressive litigation. 2 

25. The statute of Merton was passed in the 20th of Henry III. 3 
Chapter I. was expressly designed to remedy the injustice noticed 
in the preceding section. By Bracton it is called Nova Constitution 
It was therein provided that the wife should recover damages in her 
writ of dower from the time of the death of her husband ; and more- 
over that persons convicted of deforcing widows of their dower should 
be in misericordid to the king. 5 Before the making of this statute, 
it had been an open question whether the tenant in dower might 
lawfully bequeath the grain which she had sown, or whether it should 
go to the reversioner with the lands. Chapter II. removed this doubt, 
and declared in favor of the widow that she might bequeath the 
growing crop upon the lands held in dower. And this provision 
extended to all descriptions of dower. 6 Although the statute of 
Merton gave to the widow damages for the detention of her dower, 
yet it did not permit her to recover costs ; but by the statute of 
Gloucester, passed in the 6th of Edward I., costs were given her also. 7 

26. Littleton tells us that formerly there were five kinds of dower, 
namely, dower ad ostium eeclesise, dower by the common law, dower 
by the custom, dower ex assensu patris, and dower de la pluis beale. s 
Dower ad ostium eeclesise, and dower by the common law we have 
already noticed. 

27. Dower by the custom was where, by the custom of any par- 
ticular locality, the widow was entitled to a peculiar and unusual 
allotment of dower. In some places the whole land was assigned 
her ; in others one-half, and in others again, the one-fourth. 9 

i Co. Litt. 34, b. 2 Ibid, and 32, b.; Beeves' Hist. Eng. Law, 261. 

s 2 Inst. 79, 80. * Lib. 4, 312, and lib. 2, 96; Co. Litt. 32, b. 

5 Co. Litt. 32, b. ; 1 Keeves' Hist. Eng. Law, 261 ; Stat, of Merton, cap. 1 ; 2 Inst. 80. 
e 2 Inst. 80, 81; 1 Reeves' Hist. Eng. Law, 262. 

' Co. Litt. 32, b. note 4. This statute is set out at length in 2d Inst. pp. 277 to 
330 inclusive, 
s Seo. 51. » Litt. I 37; 1 Greenl. Cruise, 167, (*154,) \\ 7-10. 



CH. I.] ORIGIN AND NATURE OS DOWER. 19 

28. Dower ex assen&u patris was where the father, being seized 
of lands in fee, permitted his son and heir apparent, at the time of 
the marriage of the son, to endow his wife at the church door, of a 
portion thereof. This species of dower resembled dower ad ostium 
ecclesise, and, as was the rule in that mode of endowment, no further 
assignment was necessary. 1 The widow might enter upon the dower 
thus assigned her, immediately upon the death of her husband, even 
though the father were still living. 2 It is said, however, and with 
apparent reason, that it was important to the widow that she should 
have a deed from the father showing his consent to the endowment. 3 

29. Dower de la pluis beale was where the husband held a por- 
tion of his lands by knight service and a portion in socage, and died 
leaving a widow and a son within the age of fourteen years, and the 
lord of whom the land was held in knight's service entered upon that 
portion as guardian in chivalry during the nonage of the infant, and 
the widow entered upon and occupied the residue as guardian in 
socage. If, in such case, she brought a writ to be endowed of the 
whole premises, she was compelled to endow herself de la pluis beale; 
that is to say, of the fairest portion of the tenements held by her as 
guardian in socage.* 

30. Dower by the common law is the only one of these several 
kinds of dower that prevails in the United States. The first, fourth, 
and fifth were long since abolished in England, the fifth, particularly, 
sharing the fate of the military tenures of which it was an appendage. 5 

31. While, as we have seen, some writers, including Lord Coke, 
confidently assert that dower in lands formed one of the institutions 
of the Saxons, there are others who, on the contrary, maintain that 
it was not known in England until after the Norman Conquest. 
Chancellor Kent appears to be of this number. 6 Sir Martin Wright 
supposes it to have been brought to England by the Normans as a 
branch of their doctrine of fiefs or tenures. 7 Spelman deduces the 
word dos from the French douaire. 8 And in Bacon's -Abridgment 

1 Litt. I 40. See Glanville, b. 6, ch. 17. 

a Co. Litt. 35, b. In the time of Glanville this was an unsettled question ; b. 6, ch. 17. 
» Litt. I 40. See Crabb's Hist. Eng. Law, 80, 81. 
* Litt. I 48. 

6 Thomson's Charters, 173 ; Lambert on Dower, 14. Dower ad ostium ecclesise, and 
ex assensu patris are abolished by 3 and 4 Will. IV. c. 105, \ 13. See Appendix. 
6 4 Com. 36, note a. See ante, \ 5. 

' Wright on Tenures, 192 ; 4 Kent, 36, note ; Stearns' Real Act, (274,) 2d ed. 
8 Spelm. tit. Doarivm, 175. 



20 THE LAW OF DOWER. [CH. I. 

it is said, that among the feudists the rule was non uxor marito, 
sed uxori maritus affert, and the reason given is that the husband 
and eldest son of the family being brought up in military exercise, 
the wife and youngest sons tilled and improved the land, and in the 
expeditions of the former, the latter found provisions for the army, 
and having the third part in labor, the wife had the third part of 
the feud for the maintenance of herself and the younger children 
during her life. 1 

32. But whatever question there may be as to the nation or people 
with whom this institution originated, no doubt can exist as to the 
motive which led to its adoption into the common law of England. 
It is a provision intended for the sustenance of the wife and younger 
children at a time when the husband and father can no longer minister 
to their wants. 2 The dependent condition of the widow, and the 
helplessness of the orphan have ever been proverbial, and many cen- 
turies ago it was written of them that they should be constantly held 
in remembrance by the Great Father of all. A feeling of tender- 
ness and pity for their forlorn and destitute condition is a common 
sentiment with mankind, and the instincts of humanity have declared 
that a fund sacred to that purpose alone should be set apart for their 
maintenance and support. "The relation of husband and wife," 
says Sir Joseph Jekyll, "as it is the nearest, so it is the earliest; 
and therefore the wife is the proper object of the kindness and care 
of the husband. The husband is bound by the law of God and man 
to provide for her during his life; and after his death the moral 
obligation is not an end; but he ought to take care of her provision 
during her own life. This is the more reasonable, as during the 
coverture, the wife can acquire no property of her own. If, before 
her marriage she had a real estate, this, by the coverture, ceases to 
be hers. Her personal property becomes his absolutely, or at least 
is subject to his control; so that, unless she has a real estate of her 
own, (which is the case of but few,) she may, by his death, be desti- 
tute of the necessaries of life, unless provided for out of his estate, 
either by a jointure or by dower. As to the husband's personal 
estate, unless restrained by special custom, which very rarely takes 
place, he may give it all away from her, so that his real estate, if he 



1 2 Bac. Abr. 356, note, citing Spelman, tit. Doarium, 175. 

s The real objects of dower are sustenance for the wife, and nurture and educa- 
tion for the children. Fleta, L. 5, cap. 23. 



CH. I.] ORIGIN AND NATURE OF DOWER. 21 

has any, is the only plank she can lay hold of to prevent her sinking 
under her distress. Thus the wife is said to have a moral right to 
dower." 1 

33. In the earlier ages it was considered of paramount importance 
to guard and protect the dower interest of the widow; for by the old 
law lands could not be devised, unless it were in some particular 
places, by the custom, until the statute of Henry VIII. And in 
those early days the personal estates of the wealthiest were incon- 
siderable, and before trusts were invented, which was at a compara- 
tively recent period, the husband could give his wife nothing during 
his own life. 2 Hence, without her dower, the widow, in most in- 
stances, would have been left without any provision whatever. Hence, 
too, we find the sturdy and chivalrous barons of more than six cen- 
turies ago, incorporating into the Great Charter of their liberties a 
provision intended to endure for all time, securing to the widow her 
right of dower. It would seem also that the Church, ever vigilant 
and active, untiringly exerted its commanding influence to establish 
upon a firm foundation this all-important right. " The provision for 
the widow," says Mr. Maine, "was attributable to the exertions of 
the Church, which never relaxed its solicitude for the interest of 
wives surviving their husbands — winning, perhaps, one of the most 
arduous of its triumphs, when, after exacting for two or three centu- 
ries an express promise from the husband at marriage to endow his 
wife, it at length succeeded in engrafting the principle of dower on 
the customary law of all Western Europe. Curiously enough, the 
dower of lands proved a more stable institution than the analogous 
and more ancient reservation of certain shares of the personal prop- 
erty to the widow and children." 3 According to Lord Bacon, "the 
tenant in dower is so much favored as that it is the common by-word 
in the law that the law favoreth three things: 1. Life; 2. Liberty; 
3. Dower."* Favorabilia in lege sunt, vita, fiscus, dos, libertas, was 
indeed a maxim of the law, and the Year Books and early reports 
contain ample proofs of the liberal spirit manifested by the courts in 
its application. 5 

1 2 P. Wins. 702, in Banks v. Sutton. 

s 1 Inst, by Harg. & B. 13 ed. 30, b. note 8; 1 Thomas' Coke, 442, (*567,) 30, b. 
note. 

s Maine's Anc. Law, 224. 

4 Bacon's Reading on the Stat, of Uses, ed. 1642, pp. 31, 32. 

6 Park, Dower, 2 ; Cro. Car. 301 ; Cro. Jae. Ill ; 9 Co. 17, b. ; 3 Atk. 37; 1 Ball. 
Rep. 417. 



22 THE LAW OF DOWER. [CH. I. 

34. It must be admitted, however, that some of the causes which 
led to this extreme jealousy of the law, and watchful care of the 
courts on behalf of the dowress, have, in a measure, disappeared. 
The rigor of the ancient common law has been greatly softened. . 
The right of separate property in the wife is now liberally accorded 
her ; and the same humane and chivalrous spirit which first led to 
the establishment of the estate in dower has, in the progress of time, 
and with beneficent hand, sundered many of the fetters with which 
her property interests were formerly bound. In some of the Amer- 
ican States the right of dower has been greatly extended. In others, 
in default of issue, and where the husband dies intestate, she succeeds 
to the entire estate remaining after payment of his debts. Possibly 
there is a tendency in modern legislation to proceed to the opposite 
extreme; for while, at all times, ample provision should be made for 
the widow, it should not be forgotten that there may be others beside 
lineal descendants, who, by the ties of blood, and the laws of nature, 
have likewise claims upon the estate of the deceased. 



CHAPTER II. 



DOWER IN THE UNITED STATES. 



1 1. Introductory. 
2-5. Dower in Virginia. 



6-7. 

8. 

9. 
10. 

11, 12. 
13, 14. 
15. 
16. 
17. 
18. 
19. 
20. 
21. 
22. 
23. 
24. 



Massachusetts. 
Connecticut. 
New Jersey. 
New York. 
Delaware. 
South Carolina. 
North Carolina. 
Tennessee. 
Georgia. 
Mississippi. 
Alabama. 
Rhode Island. 
Maryland. 
Vermont. 
Kentucky. 
New Hampshire. 



\ 25. Dower in Pennsylvania. 



26. 


Ohio. 


27, 28. 


Indiana. 


29. 


Illinois. 


30. 


Michigan. 


31. 


Missouri. 


32. 


Arkansas. 


33. 


Maine. 


34. 


Florida. 


35. 


Wisconsin. 


86. 


Iowa. 


37. 


Minnesota. 


38. 


Oregon. 


39. 


Kansas. 


40. 


Texas. 


41. 


California. 


42. 


Louisiana. 



1. A. brief account of the introduction of dower, and its early 
history in this country, seems a proper accompaniment to the pre- 
ceding chapter, and may prove not altogether without profit to the 
practitioner, nor entirely devoid of interest to the student of the law. 

2. Virginia. — The first charter to Sir Thomas Gates and others, 
for the settlement of Virginia, bears date April 10, 1606, and was 
granted by James I. in the fourth year of his reign. 1 By that instru- 
ment it is declared that the colonists and their descendants "shall 
have and enjoy all liberties, franchises, and immunities within any of 
our other dominions, to all intents and purposes as if they had been 
abiding and born within this our realm of England, or any other 
of our said dominions." 2 Among the "Articles, Instructions, and 
Orders, made sett down and established" by the king "for the good 
order and government of the two several colonies and plantations to 



i Stith's App. No. 1, p. 1. 



2 Sec. 15 ; 1 Hen. Stat, at Large, p. 
(23) 



24 THE LAW OF DOWER. [CH. II. 

be made by our loving subjects in the country called Virginia, is 
the following: "And moreover wee do hereby ordaine and establish 
for us, our heirs and successors, that all the lands, tenements, and 
hereditaments, to be had and enjoyed by any of our subjects within 
the precincts aforesaid, shal be had and inherited and injoyed ac- 
cording as in the like estates they be had and enjoyed by the lawes 
within this realme of England." 1 It was in December, 1606, that 
the adventurers who were to find a new home beyond the Atlantic, 
Captain John Smith among the number, set sail from England for 
Virginia, and late in the following season landed upon the banks of 
the James River, selected a site for the colony, and proceeded to 
take measures for the establishment of the infant commonwealth. 
At that time there were but two settlements of whites along the 
whole extent of our shores, that of the Spaniards at St. Augustine, 
away in the extreme southwest, and a small colony of the French, 
who had landed at Port Royal some two years before. The remain- 
der of the continent was a wide-spread wilderness. 

3. It was but natural that the colonists should bring with them 
many of the laws and customs of the mother country. It needed 
not "Articles and Instructions" from the king to secure this result; 
and it would have been difficult for him, even by an arbitrary exer- 
cise of the powers reserved in the charter, if he had been so disposed, 
to entirely defeat the wishes and inclinations of the colonists in this 
respect. As their ancestors, upon the banks of the Runingmede, 
had not been unmindful of the widow and the orphan, so we find, 
among the ancient records of the colony, unmistakable evidence that 
the same thoughtful regard and provident care for the dependence of 
the one, and the helplessness of the other, were manifested by the 
men who had taken up their abode in the forest, upon the banks of 
the James River, three thousand miles from the land of their birth. 
But a little more than twenty years from the time the vessels of the 
emigrants first sailed along the James River — some fourteen years 
only after the gentle Pocahontas exchanged marriage vows with 
John Rolfe, and about seven years from the time the Pilgrim Fathers 
landed at Plymouth Rock — the right of a widow to dower in the 
lands of her deceased husband was distinctly recognized, in the 
exercise of their judicial functions, by the " Governor and Council 

i Nov. 20, 1606 ; MS. record book in the Register's Office, Va., Book No. 2, p. 1 ; 
1 Hen. Stat, at Large, 67, 69. 



CH. II.] BOWER IN THE UNITED STATES. 25 

of Virginia." The following entry, taken from some loose manu- 
script sheets found among the acts of the General Assembly of the 
period to which they relate, will verify the truth of this observation : 

A court at James citty the 16th Nov, 1627. Oapt. ffrancis "West, Esq. 
Governor, &c. Doct. Pott, Mr. Persey, Capt. Smith, Mr. Secretary, Oapt. 
Matthewes, Capt. Tucker, Mr. ffarrar. 

At this court the lady Temperance Yeardley came and did fully and abso- 
lutely confirm, as much as in her lay, the conveyance made by her late husband, 
Sir George Yeardley, knt. late Governor, deceased, unto Abraham Persey, Esq., 
for the lands of Flowerdieu Hundred, being one thousand acres, and of Wean- 
doke on the opposite side of the water, being 2200 acres. And the said lady 
Temperance Yeardley did then altogether absolutely disclaime and release unto 
the said Abraham Persey, all her right, interest and claime, in all and every 
part of the said lands, to herself anyways being and appertaining, either by way 
of dower or thirds. 1 

The next notice of the right of dower we have is the following, 
from which it appears that it was not always restricted to one-third 
of the husband's estate : — 

Streeter v. Burbage's heir. 

In the difference between Capt.. Streeter who married Mrs. Burbage,the relict 
of Capt. Thomas Burbage, It is ordered, That the plantation of the said Bur- 
bage att Nansemund be equally devided in quantity and quality both land and 
houseing, and all other lands of the said Burbage be divided according to quan- 
tity and quality as aforesaid, into thirds by a jury upon the place; of both which, 
being soe devided, the said Streeter's wife is to chuse which half of the planta- 
tion att Nanzemund, and which thirds of the other land she pleaseth to enjoy ; 
the same only for her life ; and Wm. Burbage to take the remainder as heir at 
lawe, the charges of those divisions to be bearen according to each others pro- 
portions. 2 

4. Although, as above shown, the right of dower appears to have 
been recognized by the judicial authorities, there was no express en- 
actment on the subject until the meeting of the " Grand Assembly 
at James City," in September, 1664, at which time the following 
law was passed : — 

Act VII. An act concerning Widdows thirds. 

Whereas some doubts have risen about the proportioning and assigning the 
thirds of the estates of persons intestate to their widdows, It is, for explanation, 
enacted by this grand assembly and the authority thereof, that the estate of all 
persons intestate, or where the will is doubtfull, whether personall or reall, vizt., 
land cleered, or wood land, and houseing, may be, according to the quantity 



1 1 Hen. Stat, at Large, 145, note. 

2 Public orders of Assembly, March 24th, 1655 j 1 Hen. Stat, at Large, 405. 



26 THE LAW OF DOWER. [CH. II. 

and quality of the said land and houseing, divided equally into thirds, and the 
widdow to have her choice after the division. 1 

Thus stood the law in Virginia until 1673. Subsequently, " att 
a Grand Assembly holden at James city," on the 20th of October, 
1673, " to the glory of Almighty God, and publique Weale of this, 
his Majestie's Colony of Virginia, were enacted as followeth :" — 

Act I. An act for establishing the dowers of Widdows. 

"Whereas, many doubts have arisen concerning the estates of persons dying 
intestate, and of what parte thereof ought to appertaine to the widdow ; for 
the clearing whereof, Be it enacted by the governor, councell and burgesses of 
the grand assembly, and the authority thereof, that where persons dye intestate, 
the widdow shal be endowed with the third part of the real estate to bee 
equally divided as to houseing, ffenced grounds, orchards, woods, and other 
valuable conveniences, dureing her naturall life, and the third part of the 
personal estate, if there be but one or two children, but if there be any number 
of children more, how many soever, in that case the personall estate to be de- 
vided amongst the widdow and all the children, share and share alike ; and in 
case the husband make a will, that he hath it in his power to devise more to his 
wife than what is above determined, but not lesse. 2 

5. An act passed at the session of October, 1705, provided that 
the widow of an intestate should be endowed of one full equal third 
part of the lands of her deceased husband " in manner as is directed 
and prescribed by the laws and constitutions of the kingdom of Eng- 
land." It also gave her the right to continue in the mansion house 
of her husband, and the messuage thereto belonging, free of charge, 
until her dower was assigned. But in case a jointure was settled 
upon her in the lifetime of her husband, such " as by law doth barr 
her of her dower," she was restricted thereto. 3 This statute was 
substantially re-enacted at the session of 1748. 4 At the sessions 
of October, 1705, and February, 1727, acts were passed relating to 
dower in slaves, and the remedy of the widow in such cases. 5 A 
similar statute was passed in 1748. 6 Chapter I. of the acts of the 
same session directs the mode of relinquishment of dower by femes 
covert. 7 The subsequent legislation, commencing with the session of 
October, 1785, in which dower in equitable estates was first provided 
for, will be noticed, under appropriate heads, in the ensuing pages. 

1 2 Hen. Stat, at Large, 212. 2 2 Hen. Stat, at Large, 303. 

» 3 Hen. Stat, at Large, 374, \\ 8, 9. 

* 5 Hen. Stat, at Large, 448, \\ 14, 15. 

5 3 Hen. Stat, at Large, 384, 335, \\ 9, 10, 11 ; 4 Hen. Stat, at Large, 227, \ 18. 

e 5 Hen. Stat, at Large, 445, 446, §g 5-8. 

' 5 Hen. Stat, at Large, 410, 411, \\ 5-8. 



CH. II.] DOWER IN THE UNITED STATES. 27 

6. Massachusetts. — The earliest law in Massachusetts, conferring 
the right of dower, ia the colony act of 1641, 1 which reads as fol- 
lows : — 

Forasmuch as no provision hath been made for any certain maintenance of 
wives after the decease of their husbands ; 

It is ordered by this court, and the authority thereof, that every married 
woman, (living with her husband in this jurisdiction, or other where absent from 
him with his consent, or through his mere default, or inevitable providence, or 
in case of divorce where she is the innocent party,) that shall not, before mar- 
riage, be estated by way of jointure, in some houses, lands, tenements, or other 
hereditaments for term of life, shall, immediately after the death of her husband, 
have right and interest, by way of dowry, in and to one third part of all such 
houses, lands, tenements, and hereditaments, as her husband was seized of to 
his own use, either in possession, reversion or remainder, in any estate of in- 
heritance, (or frank tenement not then determined,) at any time during the mar- 
riage, to have and enjoy for the term of her natural life, according to the estate 
of such husband, free and fully discharged of and from all titles, debts, rents, 
charges, judgments, executions, and other incumbrances whatsoever, had, made 
or suffered by her husband during the said marriage between them, or by any 
other person claiming by, from, or under him, or otherwise than by some act or 
consent of such wife, signified by writing under her hand, and acknowledged 
before some magistrate, or others, authorized thereunto, which shall bar her 
from any right or interest in such estate. And if the heir of the husband, or 
other person interested, shall not, within one month after lawful demand made, 
assign and set out to such widow her just third part with conveniency, or to 
her satisfaction, according to the intent of this law, then upon a writ of dowry 
in the court of that shire where the said houses, lands, tenements, or other here- 
ditaments shall lie, or in the court of assistants, if the same lie in several shires, 
her third part or dowry shall be assigned her, to be set out in several by metes 
and bounds, by such persons as the same court shall appoint for that purpose, 
with all costs and damages sustained ; provided, always, this law shall not ex- 
tend to any houses, lands, tenements or other hereditaments sold or conveyed 
away by any husband, bona fide, for valuable consideration before the last of 
November, one thousand six hundred and forty-seven. Provided, also, that 
every such widow so endowed as aforesaid, shall not commit or suffer any strip 
or waste, but shall maintain all such houses, fences and inclosures as shall be 
assigned to her for her dowry, and shall leave the same in good and sufficient 
reparation in all respects. 8 

1 1 Washb. Real Prop. 149, note; 4 Dane's Abr. 664; Stearns' Real Act, 279. 
"An Abstract of the Lawes of New England," as they were then established, was 
published in London in 1641, but prior to the adoption of the act above given. 
Chapter IV. of the laws thus published regulates the right of descent, but is silent 
as to any provision for the widow. 3 Force's Hist. Tracts, No. IX. p. 8. 

It may be remarked in this connection that the Massachusetts colony act of 1641 
appears to be the first legislative enactment, on the subject of dower, on this side 
the Atlantic, the Virginia statute of 1664 being the next in order. 

2 Anc. Laws and Char. Mass. Bay, 99. 



28 THE LAW OF DOWER. [CH. II. 

By the terms of the proviso in this act, excepting from its opera- 
tion lands sold or conveyed by the husband prior to November, 1647, 
it would seem that anterior to that date the right of dower was not 
very securely established, otherwise it would have prevailed against 
a purchaser from the husband alone, notwithstanding the language 
of the proviso. 

7. The Province Law of 1696, which directed the mode of distri- 
bution of insolvent estates among creditors, contained a clause secur- 
ing the right of dower. 1 In 1701 was passed "an act for the speedy 
and convenient assignment of dower," resembling, in its general feat- 
ures, the statute now in force. 2 A law of 1783 gave to the widow 
the right to waive the provisions of her husband's will in her favor, 
and take dower in his estate. 3 Another law of the same year de- 
clares "that the widow of the deceased shall, in all cases, be entitled 
to her dower in the real estate, (where she shall not have been other- 
wise endowed before marriage,) and to a recovery of the same in 
manner as the law directs." 4 The right of dower was also protected 
in equities of redemption taken on attachment or execution against 
the husband, 5 and also in estates confiscated under the act of 1779 ; 6 
and no deed or mortgage of the husband was to bar the wife's dower 
unless she joined therein. 7 In the act regulating descents was a 
clause securing to the "widow her dower at the common law, unless 
she be lawfully barred of the same." 8 The foregoing comprehend 
the material provisions of the laws of Massachusetts respecting dower, 
down to the revision of 1836. 

8. Connecticut. — In the revision of the statutes of Connecticut 
made in 1672, many of the material portions of the Massachusetts 
colony act of 1641 9 were adopted, with one important variation. By 
the act last mentioned the wife was dowable of all lands of which the 



1 Ane. Laws and Char. Mass. Bay, 290 ; incorporated in act of 1784, ch. 2 ; 1 Laws 
Mass. 152. 

2 Ibid. p. 359-362; see, also, Acts 1783, ch. 40; 1 Mass. Laws, p. 119. 
» 1 Laws of Mass. p. 94, ch. 24, <5 8 ; Acts of 1783. 

* 1 Laws of Mass. p. 106, ch. 36, \ 4 ; Laws of 1783. 

5 1 Laws of Mass. 142, ch. 57, <S 4; Laws of 1783. 

« 1 Laws of Mass. 51, ch. 50, \ 2; Acts of 1780. 

* 1 Laws Mass. Ill, ch. 37, \ 5; Acts of 1783. 

s 2 Laws Mass. 146, ch. 90, ji 1 ; Acts of 1805. 

s Stat. Conn. (1796,) p. 146, \ 1 ; Stat. Conn. (1808,) p. 239, and note ; Stat. Conn. 
(1821,) p. 180, and note; Stat. Conn. (1838,) p. 188; Rev. Stat. 1849, p. 276; Comp. 
Stat. 1854, p. 382. 



CH. II.] BOWER IN THE UNITED STATES. 29 

husband was seized during the coverture. By the statute as adopted 
in Connecticut the right of dower was restricted to the estate of 
which the husband was seized at the time of his death. The first 
section reads as follows : — 

Every married woman living with her husband in this State, or absent else- 
where from him with his consent, or through his meer Default, or by inevitable 
Providence ; or in case of Divorce where she is the innocent party, that shall not, 
before marriage, be estated by way of jointure in some Houses, Lands, Tene- 
ments, or Hereditaments for Term of life ; or with some other estate in lieu 
thereof, shall immediately upon and after the death of her husband, have right, 
title, and interest, by way of dower, in and unto one third part of the real estate 
of her said deceased husband, in houses and lands which he stood possessed of 
in his own right at the time of his decease, to be to her during her natural life ; 
the remainder of the estate shall be disposed of according to the will of the 
deceased; and when there is no will according to law. 1 

The same act, as subsequently revfsed, provided a mode for the 
speedy assignment of dower; forbid waste, and declared the remedy 
in such cases. 2 In 1699 the Massachusetts act of 1692, providing 
for the distribution of intesta'te estates, was adopted. 3 This act con- 
tained a saving of the widow's " dower or thirds in the houses and 
lands during her life," where she had not been otherwise endowed 
before marriage. 1 Dower was also protected in insolvent estates. 5 
In 1794 an amendment was made conferring upon judges of pro- 
bate power to order the assignment of dower. 6 The material pro- 
visions of these enactments are still in force. 7 

9. New Jersey. — In East Jersey, in 1682, it was provided that the 
estate of a feme covert might be conveyed by deed acknowledged 
in the Court of Common Right, the wife declaring upon such exam- 
ination that she signed it freely, without threats or compulsion of 
her husband. By a subsequent act this acknowledgment might be 



1 Stat. Conn. (1796,) p. 146, \\; Stat. Conn. (1808,) p. 239, and note; Stat. Conn. 
(1821,) p. 180, and note; Stat. Conn. (1838,) p. 188; Rev. Stat. 1849, p. 276; Comp. 
Stat. 1854, p. 382. 

2 \\ 2, 3, 4. The 2d section was passed in Oct. 1736; the 3d section was in the 
original revision of 1672 ; the 4th section was introduced in the revision of 1702. 
Stat. Conn. (1808,') p. 240, notes. 

s Stat. Conn. (1808,) 265, and note, p. 266. 

4 Ibid. I 12 ; see p. 267, \ 16, and note 13. 

5 Stat. Conn. (1808,) pp. 275-6. 

« Stat. Conn. (1796,) p. 148; Stat. Conn. (1808,) p. 240. 

* See Comp. Stat. 1854, p. 382, ch. 3 ; p. 498, jj 40 ; p. 499 ; p. 504, \ 59. 



30 THE LAW OF DOWER. [CH. II. 

made before a judge of any court of record in the Province. 1 An 
amendatory act relating to descents, passed May 24, 1780, contained 
a saving clause that none of the provisions thereof should affect mar- 
riage settlements, jointures, nor the widow's "right of dower." 2 In 
1795 the widow was authorized to bequeath crops growing on the 
lands assigned her in dower ; 3 and a year later it was enacted that 
her right should not be barred by the conviction of the husband of 
any crime or offence against the State.* "An act relative to dower" 
was passed January 31, 1799, the first section of which is as follows: 

The widow, whether alien or not, of any person dying intestate, or otherwise, 
shall be endowed for the term of her natural life, of the one full and equal third 
part of all the lands, tenements, and other real estate whereof her husband, or 
any other to his use, was seized of an estate of inheritance at any time during 
the coverture, to which she shall not have relinquished or released her right of 
dower by deed executed and acknowledged in the manner prescribed by law for 
that purpose. 8 

The widow was to remain in the mansion house of her husband 
until her dower was assigned; 6 a remedy was given her in case she 
was deforced of her dower, or it was unfairly assigned her, or was 
not assigned within forty days from the death of her husband f judg- 
ment against the husband by default, or a collusive recovery against 
him, was not to impair her right ; 8 provision was also made for the 
admeasurement and assignment of dower. 9 Many of the material 
provisions of this statute are still in force in New Jersey. 10 



1 Fields' Prov. Courts of N. J. 206, citing "Grants and Concessions," pp. 235, 371. 

The same writer says : " Our fathers brought with them the common law It 

was their birthright — their inheritance ; and they transplanted it, along with them- 
selves to this congenial soil, where it at once took root, and flourished. Its ample 
folds covered all the nakedness of our provincial enactments. Its abundant re- 
sources supplied all their deficiency." Ibid. pp. 15, 16. The act of Deer. 2, 1743, 
also declares "how the estate or right of a feme covert may be conveyed or extin- 

, guished." Acts of General Assembly, by Allison, p. 132. 

2 I^aws of N. J. by Paterson, pp. 43, 44, \ 4 ; see, also, Act of 1817, Laws of N. J. 
by Justice, p. 610, \ 7; Stat. N. J. (1847,) 340. 

3 Laws of N. J. by Paterson, 192. 

* Act of 1796, I 75 ; Laws of N. J. by Paterson, p. 221 ; Laws of N. J. by Justice, 
263; Stat. N. J. (1847,) 284. 

5 Laws of N. J. by Paterson, p. 343 ; Laws of N. J. by Justice, 397 ; Stat, of N. J, 
(1847,) p. 71, ch. 4; Nixon's Dig. p. 209. 

6 Paterson, p. 343, \ 2. 

' Paterson, 343, \ 3. 8 Ibid. \ 5. 

» Nixon's Dig. 209, "Dower." io Ibid. 



CH. II.] DOWER IN THE UNITED STATES. 31 

10. New York. — The first Colonial Assembly of New York met 
in 1683. The acts of this body are not found in any edition of the 
statutes extant, and but few of them have been preserved. Among 
the number rescued from oblivion, however, is " The Charter of Lib- 
ertys and Privileges granted by his Royal Highness to the Inhab- 
itants of New York, and its Dependencies," passed October 30, 
1683. The following are among the provisions contained in this 
enactment : — 

Thatt no Estate of a ffeme covert shall be sold or conveyed butt by deed ac- 
knowledged by her in some Court of Record, the woman being secretly exam- 
ined, if shee doeth itt freely without threats or compulsion of her husband. 

Thatt a Widdow, after the death of her husband, shall have her dower, and 
shall, and may tarry in the chiefe house of her husband forty days after the 
death of her husband, within which forty days her dower shall bee assigned her, 
and for her dower shall bee assigned unto her the third part of all the lands of 
her husband during coverture, except shee were endowed of lesse before mar- 
riage. 1 

The foregoing provision relating to a separate examination and 
acknowledgment by the wife, was re-enacted in identically the same 
language in the statute of May 6, 1691. 2 In January, 1787, an act 
was passed regulating the right of dower, the first section of which 
is as follows : — 

That a widow after the death of her husband shall give nothing for her dower, 
or her inheritance, which her husband and she held at the day of the death of 
her husband ; and she shall tarry in the chief house of her husband forty days 
after the death of her husband, or until her dower be assigned to her ; and she 
shall have in the meantime her reasonable sustenance out of the estate of her 
husband ; and for her dower shall be assigned unto her the third part of all the 
lands of her husband, which were his at any time during the coverture. 3 

1 Laws of N. Y. (1813,) by Van Ness and Woodworth, vol. ii. Appendix, No. II. 
p. 5. "It is worthy of remark, that the Crown, in 1697, repealed a law very sim- 
ilar in its provisions to the preceding charter, &e. entitled 'An act declaring what 
are the rights and priviledges of their Majestyes subjects inhabiting within their 
province of New Yorke.' This act may be seen at large in Bradford's edition, pages 
1, 2, 3, 4, &c. and was passed in 1691. Vide, also, Smith's History of New York, 
76, in notes. It is presumed that the foregoing ' Charter of Libertys' shared the 
same fate, though no record has yet been met with, to ascertain the fact.'' Ibid. 
p. 6, note. 

2 3 Rev. Stat. N. Y. App. No. I. p. 3 ; Bradford, p. 5. See, also, the preceding 
note. The act of 1691, however, contained no provision defining the right of dower. 

» Act of Jany. 26, 1787 ; Laws of N." Y. (1813) by Van Ness and Woodworth, vol. 
i. p. 56, \ 1. The act of Feby. 23, 1786, to abolish entails, and regulate descents, 
contained a saving of dower ; 1 Jones & Varick, p. 247, \ 4. 



32 THE LAW OF DOWER. [CH. II. 

The statute of 20 Hen. III. ch. 1, providing for the recovery of 
damages in case of deforcement of dower; the 3 Edw. I. ch. 49, re- 
lating to the abatement of the writ of dower unde nihil habet; the 
statutes of Westminster, 2, and 13 Edw. I. ch. 4, guarding the widow 
against judgments by default, or collusive recoveries suffered by the 
husband ; the 3 Edw. I. ch. 48, and 13 Edw. I. ch. 4, protecting the 
infant heir against collusive recoveries of dower, and prescribing the 
form of a writ to recover dower lost by- the widow by default ; the 
13 Edw. I. ch. 7, authorizing a guardian to take out a writ of ad- 
measurement of dower ; the statute of Westminster, 2, and 13 Edw. 
I. ch. 34, withholding dower from an adulteress ; the statute of 27 
Hen. VIII. ch. 10, § 6, relating to jointures ; the 1 Edw. VI. ch. 
12, § 17, giving dower notwithstanding the attainder, conviction, or 
outlawry of the husband, were also substantially incorporated with 
the same act. A statute, supplementary to the act of 1787, was 
passed April 7, 1806, relating principally to the mode of assigning 
dower, and directing in what courts proceedings therefor should be 
had. 1 

11. Delaware. — In the 35 of Charles II. (1683,) a law was passed 
with the following title : "How the estate of any person shall be dis- 
posed of at his death." It directed 

That whatsoever estate any person hath in this province, or territories thereof, 
at the time of his death, unless it appear that an equal provision be made else- 
where, shall be thus disposed of : That is to say, one third to the wife of the 
party deceased, one third to the children equally, and the other third as he 
pleaseth ; and in case his wife be deceased before him, two thirds shall go to the 



*Laws of New York, (1813,) by Van Ness and Woodworth, vol. ii. p. 60. A statute 
of New York, passed March 20, 1860, contained the following provisions : — 

" § 10. At the decease of husband or wife, leaving no minor child or children, the 
survivor shall hold, possess, and enjoy a life estate in one third of all the real estate 
of which the husband or wife died seized. 

"| 11". At the decease of the husband or wife intestate, leaving minor child or 
children, the survivor shall hold, possess, and enjoy all the real estate of which the 
husband or wife died seized, and all the rents, issues, and profits thereof, during the 
minority of the youngest child, and one third thereof during his or her natural 
life." Laws of N. Y. 83 sess. ch. 90, p. 159. This law did not, in terms, expressly 
repeal the dower act contained in the Revised Statutes, and while it was ia force it 
was an unsettled question whether the interest in the husband's property thereby 
given to the widow, was intended to be in lieu of, or in addition to her dower. The 
sections above quoted, however, were repealed in 1862. Act of April 10, 1862 ; 
Laws of N. Y. 85 sess. p. 344, \ 2. 



CH. II.] BOWER IN THE UNITED STATES. 33 

children equally, and the other third to be disposed of as he shall think fit, his 
debts being first paid. 1 

By a subsequent section it was provided that one-third the per- 
sonal estate of an intestate should go to his wife : — 

And further, one third of his lands and tenements to his wife during her natu- 
ral life ; the remainder, together with the other two thirds, to his children. 2 

If there were no child, the widow was to hare a moiety of the real 
estate for life. ' . 

12. In 1693 (5 Will, and Mary) was passed " the law about tes- 
tates and intestates estates." It directed that all real and personal 
estates held by any person at the time of his death should be sold for 
the payment of debts, and such sale was declared to be " conclusive 
against such deceaseds and their heirs, and all claiming under them." 
If the personal estate was sufficient to discharge the debts and ex- 
penses of administration, then the real estate of testators was to go as 
devised by them, " and one third part of all intestates lands and ten- 
ements to the wife for her life;" the residue to the heirs. 3 Under 
this law the right of dower was not only made subordinate to the 
claims of creditors, but subject, also, to the husband's power of dis- 
position by will. This was remedied in 1697, when, in an act sim- 
ilar in most respects to that of 1693, a limitation was placed upon 
this power of the husband, and it was required "that no less than 
one third part of the said real estate be allowed and invested in the 
widow during her natural life, except where due and equivalent pro- 
vision hath been made before by the testator." 4 The act of 1721 
provided, in like manner, for the sale of estates real and personal 
for the payment of debts, and the maintenance and education of the 
children, saving, however, dower in lands of which a husband died 
seized and intestate, and excepting from its operation lands conveyed 
by way of marriage settlement. 5 By an act of 1766, no will made 
by the husband prior to the marriage was to affect the right of dower, 
but as to the wife of such marriage the testator was to be regarded 
as dying intestate, and she was to take the same share of his estate 

i Laws of Del. vol. i. Appendix, p. 16, \ 109. 

2 Ibid. \ 172. The eldest son was to have a double share. 

» Laws of Del. vol. i. App. p. 20, \ 14. 

* Ibid. p. 24, \ 4 ; again in 1700, Ibid. p. 26, chap. 6, a., \ 31; substantially re- 
enacted in 1706 ; Ibid. p. 60, chap. XV. a. 

5 Laws of Del. vol. i. p. 55, ch. XXXI. a.; substantially re-enacted in 1742 ; Ibid, 
p. 62, ch. CI. a. 

VOL. I. 3 



34 THE LAW OF DOWEB. [CH. II. 

as if "no such will had ever been made." 1 For nearly or quite a 
century and a half the people of Delaware adhered to the policy of 
making the claims of creditors paramount to dower. It was not 
until 1816 that the law was so changed as to conform, to the princi- 
ples of the common law in this respect. 2 

13. South Carolina. — For several years after the first settlement 
of the country, North and South Carolina were united under the 
same government as the "province of Carolina." As early as 1671, 
however, there was a division of the territory of the province, and 
what is now South Carolina was set off as the " County of Carteret 
in Carolina;" but it was not until 1715 that it had a separate legis- 
lature. Prior to the year 1698 there appears to be no reference, in 
the legislation of the province,' to the right of dower. In October 
of that year, however, an act was passed "to prevent deceits by 
double mortgages, and conveyances of Land Negroes and Chattels," 
which contained the following provision : — 

Provided, also, that nothing in this act contained, shall be construed, deemed 
or extended, to bar any widow of any mortgage 3 of any lands or tenements from 
her dowry and right in or to the said lands who did not legally join with her 
said husband in such mortgage, or otherwise bar or exclude herself from such 
her dowry or right. 4 

Although there was then no statute expressly giving dower, this 
law contains an unequivocal recognition of its existence as an ac- 
knowledged and established right. 

14. In 1712 was passed "an act to put in force in this province 
the several statutes of the kingdom of England, or South Britain, 
therein particularly mentioned," by virtue of which many of the 
English laws became operative in South Carolina. In this enact- 
ment was embraced a considerable portion of Magna Carta of 9 
Henry III., but for some reason the chapter relating to dower was 
omitted. In addition to the statutes, and parts of statutes adopted 
by particular and specific reference thereto, a general clause was in- 
corporated in the law, by which it was declared that every part of 
the common law of England, not altered by acts adopted, nor in- 
consistent with the particular constitutions, customs and laws of the 



1 Laws of Del. vol. i. p. 419. 

» Act of 1816, \ 2 ; Laws of Del. (Rev. 1829,) p. 167. 
' So in the printed text; it should be "mortgagor." 
* Stat. S. C. vol. ii. p. 137. 



CH. II.] DOWER IN THE UNITED STATES. 35 

province, except so much as related to the ancient tenures abrogated 
by the act of parliament of 12 Charles II., was likewise adopted. 1 
Under this comprehensive provision, it would seem that the entire 
body of the English common law of dower, as then existing, became 
a part of the law of South Carolina. In the same year was re- 
enacted the law of 13 Edward I., chap. 34, relating to the forfeiture 
of dower by the adultery of the wife. 2 Also that portion of the 27 
Henry VIII., chap. 10, which relates to jointures, giving the widow 
the right of election where a jointure was settled upon her after 
marriage, and providing a remedy in case of her eviction therefrom. 3 
An act of 1731 also recognizes dower, and provides ajnode for its 
relinquishment. 4 And in the statute relating to wills the widow is 
authorized to bequeath the crops growing upon the lands held by 
her in dower. 5 In 1777 an act for the admeasurement of dower, 
and directing the mode of procedure, in such cases, was adopted ; 6 
it was repealed in 1786, and a new statute substituted in its stead. 7 
An act of 1799 declared that it should not be necessary first to peti- 
tion for a writ of dower, but that "the writ should issue as a matter 
of right. 8 

15. North Carolina.— In 1715 the South Carolina act of 1698 9 
was substantially re-enacted in North Carolina. 10 In the same year 
"an act for preventing disputes concerning lands already surveyed" 
was passed, the sixth section of which is as follows : — 

All surveys or patents hereafter to be made or granted for the land or planta- 
tion of any deceased person, the same shall be made and granted in the name 
of the heir at law, which, nevertheless shall not bar any that have title thereto 
by dower or courtesy, or by the will of the deceased possessor ; but that every 
title or claim shall stand good and valid in law, as they might or ought to have 
done if the deceased possessor had, in his lifetime, surveyed and taken out a 
patent for the same in his own name. 11 

An act of 1779 saves dower in confiscated lands. 12 But the princi- 

1 Stat, of S. C. vol. ii. pp. 401, 413; see, also, vol. i. p. 73. 

2 Stat, of S. C. vol. ii. p. 422. 

3 Stat, of S. C. vol. ii. pp. 468, 469, \\ 6-9 ; 1 Bvev. Dig. 268, 269. 

« Stat. S. C. vol. iii. p. 302, g 29; 1 Brev. Dig. p. 270, \ 5; re-enacted in 1778; 
Ibid. p. 270, I 6. 
s Stat. S. C. vol. iii. p. 383, \ 4. « Stat. S. C. vol. iv. p. 385. 

i Stat. S. C. vol. iv. p. 742; 1 Brev. Dig. pp. 270, 271, \\ 7-10. 
« Stat. S. C. vol. vii. p. 294; 1 Brev. Dig. p. 271, \ 11. 
» Ante, \ 13. 10 1 Laws N. C. p. 104, ch. 7. 

" 1 Laws N. C. p. 101, ch. 4, \ 6. "1 Laws N. C. p. 391, ch. 153. 



36 THE LAW OF DOWER. [CH. II. 

pal dower act of North Carolina was passed in 1784, and is as 
follows : — 

And whereas, the dower allotted by law in lands for widows, in the present 
unimproved state of the country, is a very inadequate provision for the support 
of such widows, and it is highly just and reasonable that those who by their 
prudence, economy and industry have contributed to raise up an estate to their 
husbands, should be entitled to share in it; Be it therefore enacted by the 
authority aforesaid, That if any person shall die intestate, or shall make his last 
will and testament, and not therein make any express provision for his wife, by 
giving and devising unto her such part or parcel of his real or personal estate, 
or to some other for her use, as shall be fully satisfactory to her, such widow 
may signify her dissent thereto before the judges of the Superior Court, or of 
the court of the county wherein she resides, in open court, within six months 
after the probate of said will; and then and in that case she shall be entitled to 
dower in the following manner, to- wit : one third part of all the lands and tene- 
ments and hereditaments of which her husband died seized or possessed. Pro- 
vided always, That any conveyances made fraudulently to children, or other- 
wise, with an intention to defeat the widow of the dower hereby allotted, shall 
be held and deemed to be void, and such widow shall be entitled to dower in 
such land so fraudulently conveyed, as if no conveyance had been made, which 
said third part shall be and enure to her own proper use, benefit and behalf, for 
and during the term of her natural life ; in which said third part shall be com- 
prehended the dwelling house in which the said husband shall have been accus- 
tomed to dwell next before his death, and commonly called the mansion house, 
together with the offices, outhouses, buildings and other improvements thereto 
belonging or appertaining. Provided, That in case it should appear to the said 
judges or justices, that the whole of the said dwelling house, outhouses, offices, 
and appurtenances, cannot be applied to the use of the wife without manifest 
injustice to the children or other relations, then, and in that case such widow 
shall be entitled to such part or portions of said dwelling house, outhouses and 
improvements thereunto belonging, as they shall conceive will be sufficient to 
afford her a decent residence, due regard being had to her rank, condition, and 
past manner of life ; which dwelling house, outhouses, offices and improvements, 
or such part thereof so allowed the said widow, shall be and enure to her during 
the term of her natural life; and furthermore, if such husband shall die leaving 
no child, or not more than two, then and in that case, she shall be entitled to 
one third part of the personal estate ; but if such husband shall die leaving 
more than two children, then in that case, such widow shall share equally with 
all the children, she being entitled to a child's part. 1 

The same act also provides for the assignment of dower, and directs 
that the proceedings shall be conducted in a summary manner. 2 



i Public Acts N. C. vol. i. p. 353, ch. 22, § 8 ; Laws N. C. vol. i. p. 469; see, also, 
p. 673, I 1 ; Rev. Stat. N. C. vol. i. p. 612, ch. 121, \ 1 ; Rev. Code N. C. (1855 ) 
p. 601, ? 1. " 

* Ibid. \l 9, 10; Rev. Stat. N. C. vol. i. pp. 613, 614, \\ 2-5. 



CH. II.] DOWER IN THE UNITED STATES. 37 

An act of 1791, relating to the liability of widows who take the 
estates of their husbands, for the debts of creditors, contains the 
following proviso : — 

Nothing herein contained shall be construed to subject the dower of a widow 
in the lands of her deceased husband, nor such lands as may be devised to her 
by his will, if such lands do not exceed the quantity she would be entitled to 
by right of dower, to the payment of debts due from the estate of her husband, 
during the term of her natural life. 1 

An act passed in 1810 provides for the relinquishment of dower 
and the acknowledgment of deeds by married women. 2 In the 
statutes as revised in 1837, dower is given in equities of redemption 
and equitable estates of inheritance. 3 

16. Tennessee. — After the separation of Tennessee from North 
Carolina, and its organization under a distinct government, many of 
the laws of the latter State were re-enacted in the new territory. 
Among these are the North Carolina acts of 1715 4 and 1784, 5 which, 
indeed, form the basis of subsequent legislation in Tennessee on the 
subject of dower. 6 The early statute giving dower in equitable es- 
tates is as follows : — 

"Widows shall be entitled to dower out of equitable estates in lands of which 
their husbands were the owners at the time of their death, in the same manner 
that they are entitled to dower in the legal estates of which their husbands 
may have died seized, or possessed.' 

17. Georgia. — The act of April 24th, 1760, confirmed convey- 
ances previously made by husband and wife, and prescribed the form 
of acknowledgment in future conveyances. 8 In December, 1768, the 

i Public Acta N. C. vol. ii. p. 18, \ 4 ; Laws N. C. Vol. i. p. 674, ch. 351, \ i ; Rev. 
Stat. N. C. vol. i. p. 615, \ 8. Prior to the passage of the act of 1784, dower was 
given in North Carolina as at common law, in the lands of which the husband was 
seized during the coverture. Taylor v. Parsley, 3 Hawks, 125. 

2 Laws of 1810, p. 11. 

8 Rev. Stat. N. C. vol. i. oh. 121, p. 614, g 6; Rev. Code N. C. (1855,) ch. 118, 
p. 602, I 6. 

* Ante, \ 15; Laws Tenn. (ed. 1821,) toI. i. pp. 17, 18, g 6; (see note, p. i8;) 
Ibid. pp. 25, 28, \ 13; Ibid. (ed. 1831.) vol. i. p. 227, \ 13; Stat. Laws Tenn. by 
Car. and Nich. p. 497. 

5 Ante, I 15; Laws Tenn. (ed. 1821,) vol. i. pp. 292, 295, <S 8; p. 296, \\ 9, 10; 
Laws Tenn. (ed. 1831,) vol. i. p. 77, §§ 8, 9 ; Stat. Laws Tenn. by Car. and Nich. 
p. 262, \ 8; p. 463, \\ 9, 10. 

« See Code of Tenn. (1858,) p. 473, ch. 3, "Dower." 

'Laws Tenn. (ed. 1831,) vol. i. p. 77, (1823;) Stat. Laws Tenn. by Car. and 
Nich. p. 265; see, also, Code of Tenn. (1858,) p. 473. 

s Laws of Georgia, by Prince-, p. 109; Cobb's N. D. p. 161. 



38 THE LAW OF DOWER. [CH. II. 

South Carolina act of 1698 1 was adopted with some immaterial verbal 
alterations. 2 The act of 1789, as amended in 1804, is as follows : — 

When any person holding real or personal estate, shall depart this life intes- 
tate, the said estate, real and personal, shall be considered as altogether of the 
same nature, and upon the same footing, so that in case of there being a widow 
and child or children, they shall draw equal shares thereof, unless the widow 
shall prefer her dower, in which event she shall have nothing further out of the 
real estate than such dower; but shall, nevertheless, receive a child's part or 
share out of the personal estate. And in case any of the children shall die 
before the intestate, their lineal descendants shall stand in their place and 
stead ; In case of there being a widow and no child or children, or represent- 
atives of children, then the widow shall draw a moiety of the estate, and the 
other moiety shall go to the next of kin in equal degree, and their represent- 
atives ; If no widow the whole shall go to the child or children. 

The act next provides for the distribution of the estate in case 
there be neither widow, child, nor children, nor legal representatives 
of the latter. 3 By an act passed in 1807 it was made the duty of 
widows, within one year after the death of their husbands, to elect 
as to the portion they would take of their husbands' estate. Upon 
failure to make such election, they were to be considered as having 
taken their dower or thirds, and to be barred from any other portion 
of the estate. 4 In 1826 an act was passed to amend the act of 
April 24th, 1760. It recites that the last-named act, in order to 
enable the husband to convey the entire interest which he has in 
lands and tenements, requires that the wife, by her own free consent, 
shall become a party in the conveyance with her husband, and re- 
linquish to the purchaser her dower interest in the premises conveyed, 
and then proceeds to enact that from thenceforth the husband shall 
have full power, by his separate conveyance during coverture, to 
pass the entire estate. An exception was made as to lands which 
came to the husband by the marriage ; and it was declared that 
nothing therein contained should impair the right of dower in all 
lands of which the husband should die seized and possessed. 6 By 
an amendment in 1842, sales and conveyances by sheriffs and other 
officers, under execution or other process, or order of court, in the 

1 Ante, I 13. 

2 Laws of Georgia, by Prince, p. Ill, § 3 ; Hotchkiss' Stat. Law of Georgia, p. 
430, g 10; Cobb's N. D. p. 162, g 3. 

8 Laws of Georgia by Prince, p. 161 ; see, also, p. 153. 
< Ibid. p. 167. 

6 Cobb's N. D. p. 171. Prior to this statute the right of dower stood as at com- 
mon law. Schroeder v. Chapman, 10 Geo. 323; Hart v. McCollum, 28 Geo. 478. 



CH. II."] DOWER IN THE UNITED STATES. 39 

lifetime of the husband, were made as effectual to bar dower as con- 
veyances executed by the husband himself. 1 

18. Mississippi. — The territorial act of December 22d, 1812, is 
a re-enactment of the North Carolina act of 1784, 2 with these modi- 
fications : All that part of the latter act which relates to fraudulent 
conveyances with intent to defeat dower, is omitted, and the law is 
so amended as to provide that in cases of intestacy, or where the 
widow dissents from the will within the time limited, 

She shall be entitled to dower in the following manner, to wit : Ona third part 
of all the lands, tenements and hereditaments of which her husband died seized 
and possessed, or had before conveyed, whereof said widow had not relinquished 
her right of dower as heretofore provided for by law. 

The time within which to make the election was extended to one 
year. There were also some slight changes in the phraseology, not 
affecting the sense. The Virginia act of 1785, 3 giving dower in 
equitable estates, was adopted in the same year.* There was an 
express saving of dower in the acts of 1821 relating to wills, and 
regulating descents. 5 It was also provided that where there were 
no children, or descendants of children of the intestate, the widow 
should take one-half of the real estate for her dower. 6 But subse- 
quently this was restricted to one-third where the estate proved 
insolvent. 7 In 1822 a statute was passed "to reduce into one the 
several acts and parts of acts relating to dower." It was substan- 
tially a re-enactment, in a connected form, of the then existing laws 
regulating the right of dower, and the mode of its assignment. 8 This 
act continued in force without material change, as regards the inter- 
ests of the widow, 9 until the revision of 1857. 10 The modifications 
then introduced will be noted hereafter. 

19. Alabama. — Alabama was separated from Mississippi, and 



1 Cobb's N. D. 179. See Stat. Laws of Georgia, by Hotchkiss, ch. 16, p. 429, \ 1. 

2 Ante, I 15; Dig. Stat. M. T. p. 254; see, also, p. 433, \ 8; Rev. Code Missis. 
p. 230. 

s Ante, § 5; post, ch. 19, \ 20. 

* Dig. Stat. M. T. p. 82 ; see, also, p. 478, act of Dec. 12th, 1816. 

* Rev. Code Missis, p. 32, \ 14, and p. 42. 

« Ibid. p. 42, g 50. 1 1bid. p. 50, g 81. 

8 Rev. Code Missis, p. 230, ch. 37. 

9 How. & Hutch. Stat. Laws Missis, pp. 345 to 353 ; p. 402, g 60; Hutch. Missis. 
Code, p. 620, ch. 43; also pp. 608-617. 

i° Rev. Code Missis. 1857, pp. 337, 467, et seq. 



40 THE LAW OF DOWER. [CH. II. 

erected into a distinct territory, in 1817. Many of the laws of Mis- 
sissippi were continued in force in the new territory. Among these 
were the dower act of December 22d, 1812, 1 and the law giving the 
widow of an intestate whose estate was solvent one-half of his real 
estate for her dower where there were no children or their descend- 
ants, but restricting it to one-third in cases of insolvency. 2 The 
right was also given to elect between dower and the provision made 
for the widow by the will of her husband. 3 Subsequently the Vir- 
ginia act of 1785,* extending the right of dower to equitable estates, 
was likewise adopted. 6 

20. Rhode Island. — The act of 1714, regulating conveyances, 
contains a section by which it is provided that dower shall not be 
barred by reason of any conveyance or mortgage made by the hus- 
band unless the wife join therein, or otherwise legally divest herself 
of her interest. 6 The statute of 1798 declares of what the widow 
shall be endowed, and directs the mode of assignment. Dower is 
thereby given in any lands whereof the " husband, or any other to 
his use was seized of an estate of inheritance at any time during the 
coverture, to which she shall not have relinquished her right of dower 
by deed." 7 The widow is permitted to remain in the mansion house 
and the messuage thereto belonging, free of charge, until her* dower 
is assigned. She is to suffer no waste, and keep the premises in re- 
pair. The statute prescribes forms for the writ of dower and the 
writ of seizin. 8 

21. Maryland. — The charter granted by Charles I., in June, 1632, 
conferred upon Lord Baltimore and his heirs, power to make laws 
for the colony, " so nevertheless that the laws aforesaid be consonant 
to reason, and be not repugnant and contrary, but (so far as conve- 
niently may be) agreeable to the laws, statutes, customs, and rights 
of this our kingdom of England." 9 In volume seven of the "Laws 
of Maryland," revised and published under the authority of the 
legislature, there is an appendix containing " the style of the ses- 



i Ante, \ 18; Laws of Ala. (1823,) p. 258, ch. 1. 

* Ante, I 18; Laws of Ala. (1823,) p. 886, \ 17. 
s Laws of Ala. (1823,) p. 884, \ 11. 

* Ante, \ 5, post, ch. 19, \ 20. 
5 Clay's Ala. Dig. p. 157, \ 36. 

e Re-enacted in 1764, 1798, 1804, and 1822 ; Laws of R. I. (1822,) p. 204, \ 6. 

' Re-enacted in 1818 and 1822 ; Laws of R. I. (1822,) p. 188, \ 1. 

8 Ibid. l\ 2, 6. » Sec. 7. 



CH. II.] DOWER IN THE UNITED STATES. 41 

sions, and the titles of all acts of assembly, in the order in which 
they passed, from the first settlement of the province, down to the 
year 1792." The " titles" of several of the early acts relating to 
real estate are given in this appendix, but not the acts themselves, 
so that it is impossible to say whether or not they contain anything 
concerning dower. But " an act for the enrolling of conveyances, 
and securing the estates of purchasers," being chapter two of the 
session of 1674, is published in full. The fifth section of this act 
provides that no married woman named as a party or grantor in any 
writing indented shall be barred, except upon her acknowledgment 
she is examined privately and apart from her husband, as to whether 
she makes the acknowledgment voluntarily and without coercion. 1 
From this provision it is to be inferred that the common law right 
of dower was then recognized and established in the colony. The 
" act to direct descents" (1786) declares that nothing therein con- 
tained shall " be taken or construed to bar or affect any widow's 
right of dower." 2 In 1798 it was enacted that any provision by 
will made by the husband for his wife should be construed to be in 
lieu of dower unless otherwise expressed, and, in order to entitle her- 
self to dower, the wife was required to renounce the provision in her 
favor Within ninety days from the probate of the will. 3 Chapter 
forty-nine of the session of 1799 contained directions for assigning 
the widow's dower, in certain cases, or with her consent, making sale 
of the lands discharged from the incumbrance, she to receive a just 
proportion of the purchase money. 4 In 1818 dower was given in 
lands held by equitable title, unless devised by will before the pas- 
sage of the act ; but such right of dower was not to prejudice any 
claim for the purchase money of the lands, " or other lien on the 
same." 5 

22. Vermont. — The first legislation in Vermont was in 1778, but 
the laws of that year were not preserved. 6 Among the enactments 

1 Re-enacted in 1692, ch. 30, §5; substantially in 1699, ch. 42, \ 5; confirmed 
by act of 1676, ch. 2, and approved in 1715, ch. 57, \ 4. See, also, Laws of 1704, 
ch. 24, (S 9 ; Laws of Maryland, vol. vii. App. ; Maryland Stat, by Marcy, vol. i. p. 127. 

2 Session 1786, ch. 45, \ 6 ; Laws of Maryland, vol. vii. 

3 Doraey's Laws Maryland, vol. i. pp. 406, 407 ; Laws, 1798, ch. 101, sub ch. 13, 

22 1-5- 

* \\ 5, 6; Laws of Maryland, vol. vii.; see, also, 'act of 1816, 6 Laws of Maryland, 
ch. 154, H 10, 11; 3 Dorsey, 646. 

6 Session 1818, ch. 193, \ 10, Laws of Maryland, vol. vii.; 3 Dorsey, p. 701. 

6 Verm. State Papers, 287, note. 



42 THE LAW OP DOWER. [CH. II. 

of the February session, 1779, was "an act concerning the dowry of 
widows." In order that there might "be suitable provision made for 
the maintenance and comfortable support of widows after the decease 
of their husbands," it was provided 

That every married woman living with her husband in this State, or absent 
from him elsewhere, with his consent, or through his mere default, or by inevita- 
ble Providence, or in case of divorce, where she is the innocent party, that shall 
not, before marriage, be estated by way of jointure, in some houses, lands, tene- 
ments, or hereditaments, for term of life, or with some other estate in lieu thereof, 
shall immediately, upon and after the death of her husband, have right, titlei 
and interest, by way of dower, in and unto one third part of the real estate of 
her said deceased husband in houses and lands, which he stood possessed of in 
his own right at the time of his decease, to be to her during her natural life; 
the remainder of the estate shall be disposed of according to the will of the de- 
ceased, and where there is no will, according to law. Provided always, that this 
law doth not extend to the widows of those that have [been] or may be guilty 
of treason. 1 

Provision was also made for the assignment of dower, and the 
widow was to suffer no waste, upon pain of forfeiture of her estate. 
An act was passed at the same session to regulate the settlement of 
estates. It recited that by ancient and immemorial custom and com- 
mon consent of the people, the estate, both real and personal, of 
intestates, had descended to and been distributed among the children 
or next of kin of the deceased ; that courts of probate had generally 
superintended the division and distribution of such estates ; that ac- 
cording to the ancient practice it was necessary that both the real 
and personal estate should be divided by the same court, in order to 
insure a just division thereof; also that some general rules of divi- 
sion and method of proceeding should be established by law ; and it 
was therefore enacted that courts of probate should have full power 
to distribute the surplus of the goods and estate of any intestate 
remaining after payment of all debts and expenses, as follows : — 

One third part of the personal estate to the wife of the intestate (if any be) 
forever ; besides her dower or thirds in the houses and lands during life, where 
such wife shall not be otherwise endowed before marriage, and all the residue 
and remainder of the real and personal estate by equal portions to and among 
the children. 2 

The act of November 4, 1799, gave the widow a right of election 
between any provision made for her by will, and her dower, as in 



i Verm. State Papers, 360. 2 Ibid. p. 342. 



CH. II.] DOWER IN THE UNITED STATES. 43 

cases of intestacy. 1 The clause limiting dower to the lands of which 
the husband died seized was carried into subsequent revisions of the 
statutes, and is still the law in that State. 

23. Kentucky. — Kentucky was separated from Virginia in 1790, 
and many of the early statutes of the former were derived from the 
parent State. Among these was a portion of the eighth section of 
the Virginia act of 1705, chap. 33, giving dower "in manner as is 
directed and prescribed by the laws and constitutions of the kingdom 
of England ;" 2 and also nearly all of chap. 62, and the whole of chap. 
65, of the acts passed at the October session, 1785. 3 These statutes 
were adopted in Kentucky on the 19th of December, 1796. 4 By 
chap. 62 estates of cestuis que trust were made subject to dower. 
Chap. 65 established the right of quarantine until dower was as- 
signed ; provided redress in case of deforcement of dower ; protected 
the widow against the consequences of the husband's laches, and col- 
lusive recoveries of his estate; prescribed the form of the writ in 
such cases; empowered the widow to bequeath the crops growing 
upon her dower lands; declared that adultery should bar dower 
unless the husband afterwards became reconciled to the wife ; that 
a sufficient jointure should bar dower unless made after marriage, or 
if before marriage, during the infancy of the wife, in which event 
she was to elect between the jointure and her dower. In case of 
eviction from the jointure lands she was remitted to her right of 
dower. 8 The act of February 24, 1797, relating to wills, contained 
a saving of dower. 6 It was also declared that conviction of treason 
or felony should be no cause of forfeiture of dower. 7 By an act 
passed February 8, 1798, slaves were declared real estate, and made 
subject to dower. 8 A part of chap. 23 of the Virginia act of 1705, 9 
providing that "where the nature of the case shall require it, any 
writ de partitione facienda, or of dower, may be sued forth and 
prosecuted to recover the right and possession of any slave or slaves," 

i Laws 1799, p. 3 ; amended Oct. 30, 1818 ; Public Acts 1818, ch. 6. 

2 3 Hen. Stat, at Large, 374, \ 8 ; ante, \ 5 ; 1 Litt. 516 ; Stat, of Ky. (1822,) vol. i. 
p. 444, I 8. 

3 12 Hen. Stat, at Large, 157, 158, \ 1 ; Ibid. 162-165, \\ 1-8. 

* 1 Litt. 516, 567; Stat, of Ky. (1822,) vol. i. p. 315, \ 14; pp. 444-446, \\ 1-8. 

5 See, also, Stat, of Ky. (1834,) vol. i. p. 448, \ 14; pp. 573-576, \\ 1-8. 

« Stat, of Ky. (1822,) vol. ii. p. 1242. 

1 1 Litt. 466; Stat, of Ky. (1834.) vol. i. p. 527, title 58; p. 531, \ 43. 

»2 Litt. 113; Stat, of Ky. (1822,) vol. ii. p. 1149; p. 1155, g 28; p. 1159, g 39. 

» 3 Hen. Stat, at Large, 334, \ 9 ; ante, \ 5. 



44 THE LAW OF DOWER. [CH. II. 

was also adopted. 1 The provisions of the Virginia act creating a 
forfeiture of dower in case of the removal of slaves, were likewise 
re-enacted. 2 On the 19th of December, 1801, an act was passed, 
the substantial provisions of which continued in force until quite 
recently, making the right of dower consummate upon the convic- 
tion of the husband of polygamy, and entitling the wife to have her 
dower assigned to her forthwith upon such conviction. 3 

24. New Hampshire. — "An act for recording deeds and convey- 
ances," passed June 14, 1701, contained the following proviso: — 

Nothing in this act to be construed, deemed, or extended to bar any widow 
of any vendor or mortgagor of lands or tenements, from her dower, or right in 
or to such lands or tenements, who' did not legally join with her husband in such 
sale or mortgage, or otherwise lawfully bar or exclude herself from such, her 
dowry, or right. 4 

The act of May 14, 1714, "for the convenient and speedy assign- 
ment of dower," prescribed the form of the writ in such cases; regu- 
lated the mode of special assignment where the property was incapa- 
ble of division, and forbid waste. 5 A statute passed in 1718 provided 
for the distribution of insolvent estates, "saving unto the widow, if 
any there be, her right of dower according to law, in the houses and 
lands of the deceased." 6 "An act for the settlement and distribution 
of the estates of intestates," passed in the same year, authorized any 
person seized of lands in fee simple to dispose of the same by will, 
" to and among his children, or others, as he shall think -fit, at his 
pleasure." If he died intestate, his estate was to be distributed, 
"one third part of the personal estate to the wife of the intestate 
forever ; besides her dower, or thirds in the houses" and lands during 
her life where such wife shall not be otherwise endowed before mar- 
riage." 7 An additional act "for the speedy and convenient assign- 
ment of dower," was passed on the 9th of February, 1791. This 
was followed by "an act relating to dower," passed December 13, 



i Body of Laws, 23 ; Stat, of Ky. (1822,) vol. ii. p. 1164, <S 9. See, also, Stat, of 
Ky. (1834,) vol. ii. p. 1479, § 39. 

2 Ante, I 5 ; Stat, of Ky. (1822,) vol. ii. p. 1246, \ 25 ; Stat, of Ky. (1834,) vol. ii. 
p. 1545, l\ 25, 26. 

s 3 Litt. 70; Stat, of Ky. (1822,) vol. ii. pp. 986, 988, \ 6; Stat, of Ky. (1834,) 
vol. ii. p. 1269, \ 6; Rev. Stat, of Ky. (1852,) p. 249, \ 10. 

* Laws of New Hamp. (ed. 1771,) ch. 12, p. 20, \ 2. 

6 Ibid. ch. 26, p. 37. « Ibid. oh. 72, p. 102. 

' Laws of New Hamp. (ed. 1771,) ch. 73, p. 104. 



CH. II.] DOWER IN THE UNITED STATES. 45 

1804. The act of July 2d, 1822, gave judges of probate power to 
assign dower in the real estate of which the husband died seized and 
possessed. 1 In July, 1829, a new statute was passed embracing the 
whole subject of dower, and repealing the acts of 1791 and 1804. 
It limited the right to such lands as were in a state of cultivation 
during the husband's seizin, or were used or kept as a wood or tim- 
ber lot, and occupied with, or as appurtenant to the farm or tenement 
owned at the same time by the husband. In case the husband had 
lost or parted with his title during his lifetime, the widow could only 
be endowed of so much of the lands as would produce a yearly income 
equal to one-third part of the yearly income thereof at the time of 
his decease. 2 By the present statute of New Hampshire the right 
of dower is restricted to the lands of which the husband died seized. 3 

25. Pennsylvania. — In this State, by a series of judicial decisions, 
and in the absence of any express enactment to that effect, the rule 
of the common law in respect to dower, so modified, however, as to 
give that right in equitable estates, is held to be in force. In ad- 
dition to the common law right thus established, statutes were passed 
in 1794 creating what is termed "statutory dower," in which pro- 
vision was made for the wife in those lands only in respect of which 
the husband died intestate, and that were not required for the payment 
of debts or expenses of administration. These statutes were substan- 
tially embodied in the act of April 8, 1883, which is still in force. 
The construction given this act, and the doctrine of the Pennsylvania 
courts limiting its operation to the lands of which the husband died 
seized, and recognizing the common law right of dower as existing in 
the lands disposed of by him in his lifetime, are sufficiently consid- 
ered elsewhere. 4 

26. Ohio. — The ordinance of 1787 for the organization and gov- 
ernment of the Northwest Territory, after providing for the descent 
of lands held by persons dying intestate, proceeds as follows: — 

Saving in all cases to the widow of the intestate her third part of the real es- 
tate for life, and one third part of the personal estate ; and this law relative 
to descents and dower shall remain in full force until altered by the legislature 
of the district. 

The first territorial law on the subject was published by the gov- 

1 New Hampshire Laws, (1830,) p. 342, g 28. 

2 Ibid. pp. 538-40, \\ 1-7; see, also, pp. 91, 339, 355. 

3 New Hampshire Comp. Laws, (1853,) p. 420, eh. 175, § 3. 
<Ch. 20, J? 18-21; ch. 29, \\ 36-40. 



46 OJtE LAW OF DOWER. [CH. II. 

ernor and judges on the 14th of July, 1795, to take effect on the first 
of the ensuing October. 1 It was adopted from the Massachusetts 
statute of 1783, of which it is nearly an exact transcript. 2 It does 
not profess to alter the provisions of the ordinance as to dower, nor 
to define in what the right shall consist, but is simply an act "for the 
speedy assignment of dower in all lands, tenements, and heredita- 
ments, whereof by law the widow is or may be dowable." It con- 
tinued in force in Ohio until the 19th of January, 1804, when the 
State Legislature passed an act relative to dower, repealing the dower 
clause of the ordinance, and the adopted act of 1795. The following 
is the first section of the act of 1804 : — 

The widow shall be entitled during her life to the use of one third part of all 
the real property that her husband was seized of during coverture, unless she 
shall have joined with her husband in the conveyance ; the widow shall tarry in 
the chief house of her husband, and have a reasonable support out of the estate 
of her husband, until her dower be assigned her, and shall be entitled to one 
third part of the remainder of the personal property, after the debts are paid. 3 

This act was repealed by the statute of February 12, 1805, which 
enlarged the right, and extended it to equitable as well as legal 
estates : — 

The widow of any person dying intestate, or otherwise, shall be endowed of 
one full and equal third part of all the lands, tenements, or other estate of which 
her husband was seized as an estate of inheritance, at any time during the cov- 
erture, to which she shall not have relinquished her right of dower, by deed duly 
executed and acknowledged ; and she shall, in like manner, be endowed of one 
third part of all the right, title, or interest that the husband, at the time of his 
decease, had in any lands and tenements held by bond, article, lease, or other 
evidence of claim ; and until such dower be assigned, it shall be lawful for her to 
remain and continue in the chief mansion house, and the messuage or plantations 
thereto belonging, without being chargeable with rent for the same. 4 

In case the husband left a will in which provision was made for 
the wife, she was required to elect whether she would take by the will 
or her estate in dower. 5 No contract of the husband nor recovery 
against him during the coverture was to affect her right. 6 A suffi- 
cient jointure was to bar dower, unless made after marriage, or during 
the infancy of the wife, in which event she might, at her election, 
waive the jointure and demand her dower. 7 The widow was forbidden 

1 1 Chase's Stat. 187. 2 Ante, \ 7. 

» 1 Chase's Stat. 395. * 1 Chase's Stat. 472, § 1. 

6 Ibid. I 3. 6 ibid. \ 4. 

' Ibid. \ 2. 



CH. II.] DOWER IN THE UNITED STATES. 47 

to commit waste. 1 The mode of proceeding, and the manner of as- 
signing dower were also prescribed by the same statute. 

27. Indiana. — At the time of the passage of the ordinance of 
1787, Indiana formed a part of the Northwest Territory, and, of 
course, was embraced within its provisions. That instrument, as we 
have seen, gave dower as at common law. 2 Ohio became a separate 
territory in. 1799, the remainder of the territory retaining its terri- 
torial organization under the name of Indiana. In 1809 a further 
division was made, the eastern portion retaining the name of Indiana, 
and the western taking that of Illinois. In Indiana, in January, 
1824, an act was passed containing the following provision : — 

The widow of any person dying intestate, or otherwise, shall be endowed of 
one full and equal third part of all the lands, tenements, and hereditaments, 
either legal or equitable, whereof her husband, or any other person to his use 
was seized at any time during the coverture ; and the dower of such widow shall 
not be considered as sold or extinguished by a sale of her husband's property, by 
virtue of any decree, execution, or mortgage. 3 

In a subsequent revision of the laws, the closing paragraph of the 
foregoing section was amended, by adding the words, "to which 
she may not be a party." 4 In 1838, the law was still further 
amended : — 

The widow of any decedent shall, in all cases not otherwise provided for in 
this act, be endowed of one full and equal third part of the lands, tenements, and 
hereditaments, the legal title to which vested in her husband, or any other per- 
son to his use, at any time during the coverture, unless the same be legally 
barred by the wife ; and also of lands, tenements, and hereditaments to which, 
or any part thereof, the said husband was equitably entitled at the time of his 
death, unless barred or released as above. And the said husband shall be con- 
sidered equitably entitled to any real property for which he has made a con- 
tract, in proportion to the purchase money actually paid in his lifetime. And 
the dower of said widow shall not be considered as sold or extinguished by a 
sale of her husband's property, by virtue of any decree, execution, or mortgage, 
to which she may not be a party. 5 

In the revision of 1843 additional changes were introduced. 
Dower was given in equitable estates as before ; if the husband had 
purchased lands and paid the purchase money in full, so as to entitle 
him to a conveyance, the widow was dowable as fully as if the con- 

1 1 Chase's Stat. p. 473, § 13. 

2 Ante, I 26. ' Laws of Ind. (1824,) p. 157, ch. 33, <S 1. 

« Rev. Laws Ind. (1831,1 p. 209, ch. 29, | 12. 

5 Act of Feby. 17, 1838 ; Rev. Stat. Ind. (1838,) ch. 29, p. 238, \ 12. 



48 THE LAW OF DOWER. [CH. II. 

veyance had been made ; if the purchase money, in whole or in part, 
had not been paid, and upon his death it was paid out of the proceeds 
of his estate, she was, in like manner, entitled to dower as if the legal 
estate had vested in him during the coverture; if part only of the 
purchase money was paid, and after the death of the husband the 
premises were sold under any decree of a court of competent juris- 
diction, or by virtue of any power or devise in his will, the widow 
was dowable only in proportion to the amount paid by the husband 
in his lifetime. Dower was also given in equities of redemption. 
Where the wife had joined in the mortgage, and after the death of the 
husband it was redeemed from his personal estate, the wife had dower 
in the whole estate. 1 

28. The foregoing provisions continued in force until 1852, when 
the entire system underwent a radical change. By the act of May 
14, 1852, tenancy in dower is abolished. 2 At the death of a husband 
one-third of his real estate descends to his widow in fee simple, free 
from all demands of creditors; provided, however, that where the real 
estate exceeds in value ten thousand dollars, the widow shall have 
one-fourth only ; and where it exceeds twenty thousand dollars, one- 
fifth only, as against creditors. 3 Subject to this exception, she is en- 
titled to one-third of all the real estate of which the husband was 
seized in fee simple at any time during the coverture to which she 
has not relinquished her right ; and also of all lands in which her 
husband had an equitable interest at the time of his death. 4 This 
right extends to lands purchased, but not conveyed, where the con- 
sideration, in whole Qr in part, is paid out of the husband's estate 
after his death ; but if the lands purchased are not fully paid for, 
and are sold after the husband's death, either under a decree of a 
court, or in virtue of any power or devise in his will, she can take 
only in proportion to the amount of the consideration paid by him. 
It embraces, also, lands mortgaged, except as to the mortgagee, and 
persons claiming under him, 5 If the husband leave a will, the wife 
may elect to take under the will, or under the law. 5 No act or con- 



i Rev. Stat, Ind. (1843,) Art. IV. pp. 427-429, \\ 80-91. 

2 1 Rev. Stat. Ind. (1852,) ch. 27, p. 250, \ 16. This revisipn did not take effect 
until May 6, 1853 ; Noel v. Ewing, 9 Ind. 37 ; Strong v. Clem, 12 Ind. 37; Giles v. 
Gullion, 13 Ind. 487; Frantz v. Harrow, Ibid. 507; Talbot v. Armstrong, 14Ind. 254. 

s 1 Rev. Stat. Ind. (1852,) ch. 27, \ 17. 

< 1 Rev. Stat. Ind. (1852,) p. 251, § 27. 

» Ibid. p. 253, H 29-31. e Ibid. p. 252, \ 27. 



CH. II.] DOWER IN THE UNITED STATES. 49 

veyance of the husband, without the wife's concurrence, can impair her 
right. 1 If a widow marry a second, or any subsequent time, holding 
real estate in virtue of any previous marriage, such widow can not, 
during such marriage, with or without the assent of her husband, 
alienate such real estate ; and if the widow die during the marriage, 
such real estate shall go to her children, if any there be, of the mar- 
riage in virtue of which it came to her. 2 It will be observed that the 
material change made in the law of dower by this statute is as to the 
extent, only, of the interest of the wife. An estate in fee in one- third 
part of the husband's lands is substituted for the life estate given at 
common law, and by the former statutes of Indiana. 3 

29. Illinois.— The act of July 14, 1795, " for the .speedy assign- 
ment of dower," applicable, at the date of its passage, to the whole 
Northwest Territory,* was continued in force in Illinois for a num- 
ber of years. It was re-enacted by the General Assembly of the 
State, February 12, 1819, and was not repealed until February 6, 
1827. 5 At the last-named aate a statute was passed "for the speedy 
assignment of dower and partition of real estate," which, as its title 
imports, directed the mode of procedure for the recovery and assign- 
ment of dower and the partition of lands. 6 It directed that the home- 
stead or dwelling-house of the husband should be embraced in the 
assignment if the widow desired it. 7 It forbid waste on pain of for- 
feiture of that part of the estate on which the waste was committed. 8 
It allowed the widow to retain in her possession the dwelling-house 
and outhouses and plantation thereto belonging free from rent until 
her dower was assigned. 9 A divorce by reason of the fault or mis- 
conduct of the wife barred dower. 10 Abandonment of the husband 
and the commission of adultery by the wife was to have the same 
effect, unless the husband afterwards became reconciled to her. 11 The 
act of January 23, 1829, contained the usual provision requiring the 



1 1 Rev. Stat. Ind. (1852,) p. 253, \ 35. J Ibid. p. 250, \ 18. 

» Noel *. Ewing, 9 Ind. 37; Bee, also, Strong v. Clem, 12 Ind. 37 ; Giles v. Gullion, 
13 Ind. 487 ; Frantz v. Harrow, Ibid. 507 ; Talbot v. Armstrong, 14 Ind. 254. 

* Ante, \ 26. The ordinance of 1787 continued in force in Illinois for some years 
after its organization under a separate territorial government ; Purple's Dig. 1st ed. 
30, 31 ; see ante, \ 27. 

5 Purple's Dig. 1st ed. 409-10, and note; Ibid. p. 419, \ 17. 

« Ibid. 414; Rev. Laws 111. (1833,) p'. 238. ' \ 5. 8 \ 6. 

» I 8. w 2 11. " i I 2 - 

VOL. I. i 



50 THE LAW OF DOWER. [CH. II. 

widow to elect between her dower and the devises and bequests in 
her husband's will. 1 By the same statute it was provided that 

Equitable estates shall be subject to the widow's dower, and all real estate 
of every description contracted for by the husband in his lifetime, the title to 
which may be completed after his decease. 2 

30. Michigan. — In 1796 Michigan was included under the govern- 
ment of the Northwest Territory, and from that period became sub- 
ject to the ordinance of 1787, which established dower as it existed 
at common law. 3 The territorial act of July 27, 1818, relating to 
descents, and providing for partition in certain cases, contained a 
provision guarding the dower right of the widow ; 4 and this provision 
was re-enacted in the statute of April 12, 1827. 5 By the Revised 
Statutes of 1838, dower was given as at common law. 6 The same 
statute gave dower in lands held subject to a mortgage, except as 
against the mortgagee and those succeeding to his rights. 7 These 
features of the law of 1838 are retained substantially in the statute 
now in force. 8 

31. Missouri. — In Reddick v. Walsh, 9 it was held that the terri- 
torial act of July 4, 1807, abolished the Spanish law of community 
formerly prevailing in Missouri, and gave the wife dower in lieu of 
her interest under that law. The same doctrine was affirmed in 
Reaume v. Chambers, 10 where it was determined that both dower and 
tenancy by the courtesy were introduced by that statute. The terri- 
torial act of January 21, 1815, gave the widow dower in all lands of 
which her husband was seized or possessed during the coverture, 
either by deed, patent, entry, or warrant of survey, to which she 
had not relinquished her right, except lands sold on execution or 
under a decree of foreclosure. 11 The act of 1817 made dower subject 
to debts. It provided that where an intestate left a child or children, 
the dower of his widow should be one-third of his estate "after all 
just demands against the said estate are paid." If the intestate left 

i Eev. Laws 111. (1829,) p. 204, \\ 39, 40. 

2 Ibid. p. 207, I 49 ; see Eev. Stat. 1845, ch. 34, p. 198, \ 1 ; Stat, of IU. (1858,) 
vol. i. p 151, I 1. 

3 Ante, \ 26; May v. Rumney, 1 Mann. 1. 

* Laws of Mich. (1820,) p. 29, \ 4. » Laws of Mich. (1827,) p. 65, \ 4. 

e Rev. Stat. Mich. (1838,) p. 262, ch. 2, | 1. ' Ibid. \ 2. 

» 2 Comp. Laws Mich. (1857,) ch. 89, p. 850. 

» Reddick v. Walsh, 15 Misso. 519. 

16 Reaume v. Chambers, 22 Misso. 36 ; see, also, Lindell v. McNair, 4 Misso. 380. 

" Territorial L. vol. i. p. 418; Ter. Dig. 210-212. 



CH. II.] DOWER IN THE UNITED STATES. 51' 

no lawful issue, the widow was to take as her dower one equal moiety 
of the estate of which he died seized — "after his just debts are paid." 1 
The act of December 1, 1821, concerning wills and testaments, de- 
clared that if a testator made no mention of his widow in the will, 
as to her he should be deemed to have died intestate. 2 The act to 
direct descents and distributions passed January 11, 1822, contained 
a saving as to dower. 3 The act of February 5, 1825, gave dower in 
slaves. 4 And on the 2d of November, 1825, a statute was' passed 
by which it would seem that the legislature intended to restore the 
former law making dower in lands paramount to the claims of credit- 
ors, and by implication to repeal the contrary provision in the act of 
1817 ; for it was thereby enacted "that no sale of lands by an adminis- 
trator for the payment of debts should in any manner affect the 
widow's right of dower. 5 By the revised statutes of 1845 dower in 
the husband's lands is not subject to his debts. If the husband die 
without a child, or other descendant living, capable of inheriting, 
the widow has her election to take her dower discharged of the debts, 
or a certain share of the estate absolutely subject to debts. 6 

32. Arkansas. — Upon the separation of Arkansas from Missouri, 
and its erection into a separate territory in 1819, many of the laws 
of Missouri, including those relating to dower, were continued in 
force in the new territory for a considerable period of time. 7 In 
1836 a State government was organized, and in the same year Ar- 
kansas was admitted into the Federal Union. Two years afterwards 
a revision of the statutes was made, 8 in which dower was given in all 
lands of which the husband was seized at any time during the cover- 
ture to which the wife had not relinquished her right. 9 A late enact- 
ment extends the right of dower (subject to debts) "to bonds, bills, 
notes, book accounts, and evidences of debt." 10 The provisions of 

i Ter. Dig. 212, 213. 

2 Act of Deer. 1, 1821, <S 4; Stokes v. Fallon, 2 Misso. 32. 
• s Act of Jany. 11, 1822; Stokes v. Fallon, 2 Misso. 32. 

* See Rev. Code 1825, p. 790; Rev. Code 1835, p. 617; Davis v. ]Javis, 5 Misso. 
183 ; Morrison v. Gemme, 31 Misso. 230. 

5 Ter. Dig. p. 57. See Stokes v. Fallon, 2 Misso. 32 ; Crittenden v. Johnson, 6 
Eng. (Ark.) 94. 

6 Rev. Stat. 1845, p. 429, ch. 54, gg 1-6. 
» See Crittenden v. Johnson, 6 Eng. 94. 

s Rev. Stat. Ark. (1838,) by Ball and Roane ; Notes and Index by Pike. 

» Ibid. p. 336, ch. 52. 

»» Act of Feby. 21, 1859 ; Laws of 1859, p. 299. 



52 THE LAW OP DOWER. [CH. II. 

the dower act contained in the revision of 1838 are substantially 
still in force. 1 

33. Maine. — The Constitution of Maine, adopted on the separa- 
tion from Massachusetts, bears date October 19, 1819. It contains 
a clause declaring that all laws then in force in the State, not re- 
pugnant to the constitution, shall remain in force until altered or 
repealed by the legislature, or until they expire by their own limita- 
tion. 2 In February, 1821, an act was passed "concerning dower." 
It gave to the widow dower 

In all such- lands, tenements and hereditaments, of which the husband was 
seized in fee, either in possession, reversion, or remainder, at any time during 
the marriage, except where such widow by her own consent may have been 
provided for by way of jointure prior to the marriage, or where she may have 
relinquished her right of dower by deed under her hand and seal. 3 

By the same act the alien widow of any citizen of the United 
States was rendered dowable "in the same manner as other widows 
are by virtue" thereof. 4 The dowress was to be entitled to one-third 
the rents and profits until her dower was assigned. 5 The act also 
prescribed the mode of proceeding for the recovery of dower. By 
the law of March, 1821, relating to wills and intestate estates, the 
widow was permitted to waive the provisions of her husband's will 
and take her dower. 6 In directing the descent of intestate estates 
there was an express saving as to dower. 7 And it was provided that 

The widow of the deceased shall, in all cases, be entitled to her dower in the 
real estate, (where she shall not have been otherwise endowed before marriage,) 
and to a recovery of the same in manner as the law directs. 8 

Dower was also saved in lands taken on execution. 9 And in the 
act directing the mode of transferring real estate by deed there is 
this proviso : — 

Nothing in this act shall be construed to bar any widow of any vendor or 
mortgagor of lands or tenements, from her dower or right in or to such lands 
or tenements, who did not join with her husband in such sale or mortgage, or 
otherwise lawfully bar or exclude herself from such dower or right. 10 



i Dig. Ark. Stat. (1858,) ch. 60, p. 450. 2 Art. 4, \ 3. 

» Laws of Maine, (1821,) ch. 40, pp. 149, 150, \ 6. 

4 Ibid. <S 4. 5 ibid. I 5. 

• Ibid. ch. 38, p. 142, \ 15. 

» Laws of Maine, (1821,) ch. 38, p. 142, \ 17. 

s Ibid. p. 143, 1 18. "Ibid. p. 281. "'ibid. ch. 36, pp. 130, 131, I 2. 



CH. II.] DOWER IN THE UNITED STATES. 53 

Some material changes were afterwards made in the laws of this 
State upon the subject of dower. They will be stated hereafter. 1 

34. Florida. — The territorial act of September 14th, 1822, passed 
the year following the cession of Florida to the United States, con- 
cerns "dower and jointures in lands and slaves, of widows." Devises 
or bequests to the wife by the husband are to be deemed and taken 
in lieu of dower in his estate, unless by the will he declare otherwise. 
But nothing in the act contained is to deprive the widow of her 
choice either to dower of the estate, or to the provision in her behalf 
made by the will. Her election must be made within one year from 
the death of the husband. In case she fail to elect, she is held to 
take under the will." The territorial act of 1828 gives as dower 
one-third of the lands of which the " husband died seized and pos- 
sessed, or had before conveyed, whereof said widow had not relin- 
quished her right of dower, as heretofore provided for by law." 3 In 
1838 an act was passed giving dower in slaves. It also provides 
that in all cases in which the widow is entitled to dower, she may 
elect, within twelve months after probate of the will or grant of let- 
ters of administration, either to take dower or a child's part in the 
estate. If she takes a child's part, her title is to be absolute ; if 
dower, she takes a life estate only. 4 

35. Wisconsin. — The act of Congress of April 20, 1836, estab- 
lishing the territorial government of Wisconsin, secured to the people 
of that territory all the rights and privileges conferred by the ordi- 
nance of 1787. 5 At a session of the territorial legislature com- 
mencing in November, 1838, and at an adjourned session commencing 
in January, 1839, several laws were passed relating to dower. It 
was enacted that a divorce, on account of the adultery of the wife, 
should bar dower. 6 The wife might release her right by joining in 
a conveyance with her husband. 7 Dower might be recovered by pro- 
ceedings in ejectment; and the manner of assigning it, where it was 
so recovered, was prescribed. 8 If dower was not assigned within one 

i See Revision of 1840-41, and of 1857. 

* Laws of Florida, (1824-35,) p. 55, \ 1. 

a Act of Nov. 7, 1828, \ 1 ; Duval, 85; Thompson's Dig. 184. 

* Act of Feb. 8, 1838; Duval, 87; Thompson's Dig. 185. The child's part here 
referred to is construed to mean a distributive share after payment of the debts. 
Ibid. note. 

5 Act of April 20, 1836, \ 12 ; see ante, \ 26. 

« Stat, of Wis. (1839,) p. 140, \ 5. » Ibid. p. 180, \ 11. 

s Ibid. p. 250, I 2 ; pp. 256-7, \\ 61, 52. 



54 THE LAW OF DOWER. [ CH - n - 

month after demand made, the widow might sue therefor ; and in 
such cases proper damages were to be awarded her, and upon recov- 
ery, a writ of seizin was to issue. In case no division could be made, 
the widow was to be endowed specially of the rents and profits. By 
a subsequent statute, now in force, dower is given in all lands of 
which the husband was seized at any time during the coverture, and 
also in equities of redemption. 2 

36. Iowa.— On the 12th of June, 1838, by an act of Congress of 
that date, the territory of Wisconsin was divided, and that portion 
lying on the west side of the Mississippi River was established as a 
separate, government, under the name of Iowa. The ordinance of 
1787 continued in force in Iowa for a number of years thereafter, 3 
and the provision relating to dower was regarded as a fundamental 
law of the territory. 4 At no time, until the adoption of the code of 
1851, was the right of dower changed from what it was as estab- 
lished by that ordinance. 6 By the act of January 25, 1839, the 
dower of the wife consisted in a life estate in one-third of her hus- 
band's lands. 6 This statute was repealed by the acts of 1842-3, 7 
leaving, however, the ordinance of 1787, so far as it regulated dower, 
still in force. 8 After the repeal of the law of 1839, there was no 
territorial statute defining the right of dower until that of June 10, 
1845. 9 The sixth section of that statute provided that dower should 
be and remain as at common law. 10 Thus stood the law in Iowa until, 
by the code of 1851, the following modification was introduced : — 

Sec. 1394. One third in value of all the real estate in which the husband, at 
any time during the marriage, had a legal or equitable interest, which has not 
been sold on execution or other judicial sale, aud to which the wife has made 
no relinquishment of her right, shall, under the direction of the court, be set 



i Stat, of Wis. (1839,) pp. 308-9, \\ 56-58. 

2 Rev. Stat. Wis. (1849,) ch. 62, p. 333 ; Rev. Stat. Wis. (1858,) ch. 89, p. 545. 

* The 12th section of the organic act provided that, until modified or repealed, the 
then existing laws of Wisconsin should extend over the new territory. 

* Davis ». O'Ferrall, 4 Greene, 168 ; O'Ferrall v. Simplot, 4 Clarke, 381 ; Pense v. 
Hixon, 8 Clarke, 402. 

6 Pense v. Hixon, 8 Clarke, 402. 

« Act of Jan. 25, 1839, p. 484, \ 41 ; p. 485, \ 44. See, also, act of Dec. 29, 1838, 
| 56. 

* Rev. Laws, 1843, p. 725. 

8 Pense v. Hixon, 8 Clarke, 402. See, also, O'Ferrall v. Simplot, 4 Clarke, 381. 

9 Ibid. 10 Laws of 1845, ch. 21, § 6. 



CH. II.] DOWER IN THE UNITED STATES. 55 

apart by the executor as her property in fee simple, upon the death of the 
husband, if she survive him. 1 

But by an act passed January 24, 1853, the foregoing section was 
repealed, and the following substituted in its stead : — 

Section 1394. One third in value of all the real estate in which the husband, 
at any time during the marriage, had a legal or equitable interest, and to which 
the wife has made no relinquishment of her rights, shall, under the direction of 
the court, be set apart by the executor as her property in dower upon the death 
of the husband, if she survive him. Said estate in dower to be and remain the 
same as at common law. 2 

37. Minnesota. — By the organic act of Minnesota, passed March' 
3d, 1849, the laws of Wisconsin were continued in force, subject to 
modification by the Governor and Legislative Assembly of the Terri- 
tory. 3 At the second session of the Legislative Assembly, com- 
mencing January 1st, 1851, the Wisconsin dower act was adopted 
without any material change, 4 and is still continued in force. 5 It 
gives dower, as at common law, in all estates of inheritance of which 
the husband was seized during the coverture, and also in equities of 
redemption. 

# 38. Oregon. — With the exception of an occasional alteration in the 
phraseology, in no degree affecting, the sense, the statute of Wiscon- 
sin above referred to, regulating the right of dower, and directing 
the mode of proceeding for the recovery thereof, is also adopted in 
Oregon. 6 

39. Kansas. — The dower act of Kansas, as adopted in 1855, in 
all its essential features is almost a literal transcript of the Missouri 
statute of 1845. 7 The revision of 1862 contains a section giving to 
the widow a right to elect whether she will take her dower, or. the 
benefit of the provisions of "an act concerning descents and distri- 
butions," approved February 8, 1859, or of an act entitled "an act 
to protect the rights of married women, and in relation to the liabili- 
ties incident to the married contract relation," approved February 7, 
1859. 8 The fifth section of the territorial act is omitted in this re- 

i Code of Iowa, (1851,) p. 213, \ 1394. 

2 Took effect July 1, 1853 ; Laws of Fourth Gen. Assem. ch.- 61, p. 97, | 1 ; Re- 
vision of Laws of Iowa, (I860,) Art. 4, p. 420, \ 2477. 
» Act of March 3d, 1849, jj 12. 
* Stat. Minn. (1851,) ch. 49, p. 217. 

5 Stat. Minn. (1849-1858,.) ch. 36, p. 407. 

6 Stat, of Oregon, (1855,) p. 404, ch. 1. 

•> Ante, I 32; Stat. Kan. Ter. (1855,) ch. 63, p. 314. 

8 Comp..Laws of Kansas, (1862,) ch. 83, p. 478, \ 2 ; Acts of 1859, ch. 63, \ 2. 



56 THE LAW OP DOWER. [CH. II. 

vision; tut in other respects the changes made are not important, so 
far at least as regards the nature and extent of the interest of the 
■widow in the estate of her husband. 

40. Texas. — The estate of dower had but a brief legal existence 
in Texas. An act passed January 26, 1839, by the Congress of the 
Republic conferred the right as it then existed in several of the 
neighboring States. The widow of an intestate, or of a testator who 
did not make a satisfactory provision for her by will, was entitled to 
dower in all the lands of which he died seized and possessed. If he 
.died without legitimate heirs of his body or their descendants, then 
the widow took one-half his estate, both real and personal, for life. 1 
But this statute was repealed February 5, 1840, 2 and no similar pro- 
vision was ever re-enacted. The act relating to wills contains no 
clause saving dower. 3 The act of March 18, 1848, regulating de- 
scents and distributions, is to the following effect : If the intestate 
leave a child or children, or their descendants, the surviving husband 
or wife is entitled to one-third the personal estate, not including 
slaves, absolutely, and also to an estate for life in one-third the land 
2-nd slaves ; if there be no child or children, or their descendants, 
then the surviving husband or wife may take all the personal estate, 
and one-half the lands and slaves absolutely; if the deceased have 
neither surviving father nor mother, nor surviving brothers and sis- 
ters, or their descendants, then the surviving husband or wife is 
entitled to the whole estate. 4 The foregoing provisions, it will 
be observed, relate solely to the descent of intestates' estates. The 
power of disposition by will is unrestricted ; and other enactments 
entirely exclude the idea of the existence of the right of dower. 
Thus all property, both real and personal, of the husband, owned or 
claimed by him before marriage, and that acquired afterwards by 
gift, devise, or descent, as also the increase of all lands or slaves thus 
acquired, are declared his separate property. All property, both 
real and personal, of the wife, owned or claimed by her before mar- 
riage, and that acquired afterwards by gift, devise, or descent, as 
also the increase of all lands or slaves thus acquired, are in like 

i Hartley's Dig. pp. 285-287, Art. 861-868 ; Oldham & White's Digest, pp. 700-1, 
Art. 34-41. 

2 Hartley's Dig. p. 285 ; Oldham & White's Dig. p. 700. 

8 Act of Jan. 28, 1840, Hartley's Dig. 977. See, also, Oldham & White's Dig. 
p. 454. 

* Oldham & White's Dig. p. 99, Art. 347 ; Hartley's Dig. p. 220, Art. 595. 



CH. II.] DOWER IN THE UNITED STATES. 57 

manner made her separate property, the husband, however, during 
the marriage, being invested with the sole management of all such 
property. 1 All property reciprocally possessed by the husband and 
wife at the time the marriage is' dissolved is regarded as common 
effects or gains, unless the contrary be satisfactorily proved. The 
common property may be disposed of by the husband during the 
coverture; it is liable for his debts, and for debts contracted for 
necessaries by the wife during the coverture. Upon the death of 
either, if there be no child or children, the remainder goes to the 
survivor; if there be a child or children, then the survivor takes 
one-half, and the balance goes to such child or children. 2 

41. California. — The statutes of California have abrogated the 
common law right of dower, and substituted in its stead a half inter- 
est in the common property. "No estate shall be allowed to the 
husband. as tenant by courtesy upon the decease of the wife, nor any 
estate in dower be allowed to the wife upon the decease of the hus- 
band." 3 The property, real and personal, owned by the husband or 
wife before marriage, and that afterwards acquired by either, by 
bequest, devise, or descent, is treated as the separate property of the 
husband or wife respectively. All acquired' during the marriage, 
except in either of the modes above specified, is regarded as common 
property. Upon the death of the husband or wife, one-half the 
common property goes to the survivor, and the other half to the 
descendants of the deceased, subject to the payment of his or her 
debts. If there be no descendants, then the whole goes to the sur- 
vivor, subject to debts. 4 

42. Louisiana. — In Louisiana the rule of the civil law prevails, 
and the jurisprudence of that State contains nothing bearing any 
resemblance to the common law right of dower. 

1 Act of March 13, 1848, \ 2; Hartley's Dig. 734, Art. 2421; Oldham & White's 
Dig. 312, Art. 1393. 

s Act of Jan. 20, 1840 ; Hartley's Dig. p. 737 ; Oldham & White's Dig. p. 313. 

s Laws of Cal. (1850-53,) p. 813, \ 10; Wood's Cal. Dig. p. 488, \ 10; Beard v. 
Knox, 5 Cal. 252. 

*Laws Cal. (1850-53,) pp. 812-814, \\ 1-13; Wood's Cal. Dig. pp. 486-489, 
to 1-13. 



CHAPTER III. 

OF MARRIAGE AS A REQUISITE OF DOWER. 



<j 1. Valid marriage essential to dower. 

2. The English marriage acts. 

3. The regular and the irregular 
marriage. 



\ 4-19. Marriage per verba de prsesenli 
at common law. 



1. Marriage is an essential prerequisite to the right of dower. 
In order to entitle a woman to this provision, she must answer the 
description of a lawful wife. 1 It becomes important, therefore, in 
the outset of our investigations, to ascertain with as much certainty 
as the nature of the subject will admit of, what formalities are neces- 
sary in law to create a valid marriage ; and having done this, then 
to inquire what circumstances, or pre-existing impediments, will 
render nugatory the ceremonial thus observed, and prevent it from 
conferring the civil rights pertaining to the legal marital relation. 

2. In England, at the present day, questions relating to the va- 
lidity of the marriage contract are of comparatively easy solution, 
for by the. different marriage acts of that country, all marriages not 
solemnized in conformity to the provisions thereof are made abso- 
lutely void. 2 The first of these acts, commonly called Lord Hard- 
wicke's, is contained in chapter thirty-three of 26 George II., passed 
in 1753. Although modified in some particulars, many of its mate- 
rial provisions still continue in force as the law regulating the mar- 
riage contract in England. But as that act, by its own terms, does 
not extend to Scotland, nor to any marriages solemnized beyond the 

1 1 Roper, H. & W. 333 ; Park, Dow. 7 ; Co. Litt. 31 a. Mr. Maequeen notices, 
in rather caustic terms, the care Mr. Roper has taken in stating this proposition. 
Macq. H. & W. 169. But I have not suffered this to deter me from giving the sub- 
ject that attention which, in the United States at least, its importance appeared to 
demand. 

* Park, Dow. 9 ; Macq. H. & W. 7-12 ; Shelf. Mar. and Div. 28. The substance 
of these statutes is given in the Appendix of Mr. Jacob, (No. 1,) to Roper on Hus- 
band and Wife. The same note will be found in the Appendix to 2 Bright on Hus- 
band and Wife, with references to later statutes added. See, also, 2 Kent, 85, note. 
(58) 



CH. III.] MARRIAGE AS A REQUISITE OF DOWER. 59 

seas, 1 the validity of marriages contracted in Scotland, Ireland, and 
the British colonies, remains wholly unaffected thereby. 2 It would 
seem to follow that, in the United States, except in so far ^,s special 
local legislation has intervened to change the rule, the doctrine of 
the common law as it existed prior to the 26th of George II. pre- 
vails. It is to this point, therefore, we should direct our attention. 

The Regular and the Irregular Marriage. 

3. By the common law, males of the age of fourteen, and females 
of the age of twelve, were capable of contracting marriage. 3 The 
formalities to be observed depended upon the doctrines of the eccle- 
siastical courts. 4 Marriages were divided into two classes, the Reg- 
ular and the Irregular. 5 In the regular marriage everything was 
presumed to be complete and consummated, both in ceremony and 
in substance, according to the prescribed formalities of the ecclesias- 
tical law. In the irregular marriage everything was presumed to 
be complete in substance, but not in ceremony. 6 The class of irreg- 
ular marriages comprised marriages per verba de prsesenti and mar- 
riages per verba de futuro cum copula ; for a promise of future mar- 
riage, when followed by sexual intercourse, was considered equivalent, 
in legal effect, to a contract per verba de prsesenti. 7 The regular 
marriage was attended, as a matter of course, with all the civil rights 
and incidents of the complete marriage contract ; but whether irreg- 
ular marriages were equally favored in law, is one of the unsettled 
and vexed questions of the day. 

Marriage per Verba de Prsesenti at Common Law. 

4. A marriage per verba de prsesenti consisted in a mutual prom- 
ise of present marriage between parties competent thereto; as when 
the man said to the woman, " I do take thee to my wife," who then 
answered, " I do take thee to my husband." No other ceremony 
was considered essential, nor did consummation by sexual intercourse 
add anything to its validity. 8 And it is said that the contract thus 

i Sec. 18. 2 Shelf. Mar. and Div. 29. 

s Co. Litt. 33 a., 79 b.; 1 Roper, H. & W. 335 ; 2 Kent, 78 ; post, oh. 8, \ 2, et seq. 

1 Shelf. Mar. and Div. 26; Jacob's note 1, App. Roper, H. & W. 

5 Shelf. Mar. and Div. 27 ; Halk. Dig. Mar. L. 29. « Ibid. 

» Dalrymple v. Dairy mple, 2 Hagg. Con. R. 65-67; Shelf. Mar. and Div. 26; Ja- 
cob's note 1, App. Roper, H. & W.; 2 Kent, 87; Halk. Dig. Mar. L. 29, 64-66; 
Bishop, Mar. and Div. § 66. 

8 Swinburne on Spousals, 8 ; Dalrymple o. Dalrymple, 2 Hagg. Cons. R. 66, 82, 
87 ; Shelf. Mar. and Div. 27 ; Bishop Mar. and Div. \\ 66, 67, and cases ihere cited. 



60 THE LAW OP DOWER. [CH. III. 

entered into, in contemplation of the ecclesiastical law, amounted to 
complete matrimony ; that it was indissoluble by any agreement of 
the parties, and rendered any subsequent marriage of either of them 
with any third person absolutely void. 1 

5. It appears to be satisfactorily established that, prior to the de- 
cree of the Council of Trent for the reformation of the marriage 
ceremonial, a simple matrimonial engagement, substantially in the 
terms above indicated, or in any other form expressive of the present 
consent of the parties to become husband and wife, was, by the gen- 
eral matrimonial law of Christian Europe, all that was deemed 
necessary to constitute an actual and legal marriage. 2 The decree 
of the Council of Trent, of the 11th November, 1563, made the 
presence of the parish priest and two witnesses essential to the va- 
lidity of a marriage ; 3 but the decrees of that body were never re- 
ceived as of authority in England, 4 and therefore the decree above 
referred to does not in any respect affect the rule of the common 
law. In many of the countries which refused to acknowledge the 
authority of that Council, no religious ceremony was considered 
necessary ; but it is a controverted question whether this rule pre- 
vailed in England, Ireland, and Scotland, and this question has un- 
dergone a vast deal of discussion in the different tribunals of those 
countries. 

6. One of the earliest reported cases, bearing upon this question, 
is Bunting v. Lepingwell, 5 decided in the time of Elizabeth. In that 
case it was adjudged that a contract per verba de prsesenti, though 
not followed by consummation, was sufficient to avoid a second mar- 
riage actually consummated. But the question whether such a con- 
tract in and of itself amounted to perfect marriage did not arise in 
the case, nor was it referred to in the resolutions of the court as re- 
ported by Coke. The learned editor of Coke's Reports, however, in 
a note to the case, says : " By the canon law, which is the general 
law throughout Europe as to marriages, except where that has been 
altered by the municipal law of any particular place, a contract of 

iPark, Dow. 8; Swinb. Spousals, 9, 13, 15; Shelf. Mar. and Div. 27, 33, 34; 
opinion of Lord Stowell in Dalrymple v. Dalrymple, 2 Hagg. Con. R. 69, 100. 

2 Shelf. Mar. and Div. 27 ; Bishop, Mar. and Div. \ 153 ; Dalrymple v. Dalrymple, 
2 Hagg. Con. R. 54. 

3 Canones et Deoreta Concillii Trident, eess. 24, c. 1 ; Shelf. Mar. and Div. 17, 
note, and 19. 

* Shelf. Mar. and Div. 18 ; Poynter, Mar. and Div. 13 ; Bishop, Mar. and Div. \ 153. 
6 Bunting v. Lepingwell, 4 Co. 29; Moor, 169. 



CH. III.] MARRIAGE AS A REQUISITE OF DOWER. 61 

marriage entered into per verba de praesenti, is considered to be an 
actual marriage per se." 1 

7. In 1 Dyer's Reports, 105, b., will be found the following note : 
"Noy, attorney-general, in the Lent readings, 1632, held, that if a 
woman be divorced from her husband causa prse contractus with 
another per verba de praesenti, in that case, immediately by the sen- 
tence given in court, the marriage shall be completed between the said 
woman and the first husband without any of the rites performed in 
facie ecclesise." But in Paine's case, 2 where the same claim was 
made in argument, and the above opinion of Noy was cited in its 
support, Twisden, justice, denied that it was law, and said that the 
marriage must be solemnized before the parties could be completely 
baron and feme. 

8. The case of Weld v. Chamberlaine 3 arose in the 35 of Charles 
II. It was tried upon an issue of "marriage or no marriage," and 
from the evidence it appeared that a person who had taken orders 
according to the Church of England in former times, but who had 
been ejected in 1663, contracted the parties in these words : "I, A. B. 
take thee, B. C. for my espoused, betrothed, and wedded husband 
until death," the person officiating speaking these wdrds, the woman 
repeating them after him, and the man the like, mutatis mutandis. 
No ring was used according to the forms of the Common Prayer 
Book. The parties cohabited as husband and wife for ten years 
afterwards. Pemberton, Chief Justice, was inclined to think this a 
good marriage, there being words of contract, de praesenti, repeated 
after a person in orders ; but, upon the request of counsel, a case 
was ordered to be made for further consideration. There appears, 
however, to be no report of the final result of the case. 

9. The case of Collins v. Jessot 4 was decided in the 3d of Ann. 
According to the report of the case given in 6 Modern, Holt, Chief 
Justice, expressed himself as follows : " If a contract be per verba de 
praesenti, it amounts to an actual marriage, which the very parties 
themselves cannot dissolve by release or other mutual agreement; 
for it is as much a marriage in the sight of God as if it had been in 
facie ecelesias, but with this difference, that if they cohabit before 
marriage in facie ecclesiae they are for that punishable by ecclesias- 
tical censures ; and if, after such contract, either of them lies with 

i Note (A.) > ! Paine's case, 1 Sid. 13. 

» Weld v. Chamberlaine, 2 Shower's Rep. 300. 

* Collins v. Jessot, 6 Mod. 155 ; 2 Salk. 437 ; Holt, 459. 



62 THE LAW OP DOWER. [CH. III. 

another, they will punish such offender as an adulterer." In the 
report of the case given in Salkeld, the same judge is represented 
as holding "that a contract per verba de prsesenti was a marriage, 
viz. : I marry you; you and I are man and wife ; and this is not re- 
leasahle." In Wigmore's case, 1 decided in 5 Ann, the opinion of 
Lord Holt is to the same effect. "By the canon law," he said, "a 
contract per verba de prsesenti is a marriage; as, I take you to be 
my wife." 2 

10. In The King v. Fielding, 3 a marriage solemnized in England 
by a Roman Catholic priest was held good as a marriage per verba 
de prsesenti, on evidence of words of present contract spoken in Eng- 
lish, the rest of the ceremony being read in the Latin tongue, which 
the witnesses present did not understand ; and this case, and also the 
views of Lord Holt, in Collins v. Jessot, were approved by the court in 
the comparatively recent case of Rex v. Brampton, determined in the 
49 of George III. 4 In that case certain British subjects in St. Do- 
mingo, in the year 1776, undertook to contract a marriage by having 
the ceremony performed in a chapel in a town where they were tem- 
porarily residing, by a person appearing there as a priest, and offici- 
ating as such. The service was in French, but was interpreted into 
English by one , who officiated as clerk, and it was understood by the 
parties at the time to be the marriage service of the Church of Eng- 
land. Afterwards the parties cohabited as husband and wife for eleven 
years, and until 'the death of the husband, and the question then 
arose whether the marriage was legal. The court were unanimously 
of opinion that it was. "I may suppose," says Lord Ellenborough, 
"in the absence of any evidence- to the contrary, that the law of 
England, ecclesiastical and civil, was recognized by the subjects of 
England in a place occupied 'by the king's troops, who would im- 
plicitly carry the law with them. It is then to be seen whether this 
would have been a good marriage here before the Marriage Act. 
Now certainly a contract of marriage per verba de prsesenti would 
have bound the parties before that act, and this appears to have been 
per verba de prsesenti, and to have been celebrated by a priest, that 
is, by one who publicly assumed the office of a priest, and appeared 



i Wigmore's Case, 2 Salk. 438 ; Holt, 459. 
2 And see 4 Bacon's* Ab. 530. 
» The King v. Fielding, 5 St. Tr. 610. 
1 Rex v. Brampton, 10 East, 282. 



CH. III.] MARRIAGE AS A REQUISITE OP DOWER. 63 

habited as such; of what persuasion, whether Roman Catholic or 
Protestant, does not appear." 1 

11. The case of Latour v. Teesdale 2 was of the same character. It 
involved the legality of a marriage which took place between two 
subjects of Great Britain, in October, 1808, at Madras, in the East 
Indies. The marriage was solemnized by a Catholic priest accord- 
ing to the rites of the Catholic Church, and was followed by cohab- 
itation. It had uniformly been the custom to obtain the license of 
the governor, but this was not done in the present case. The mar- 
riage was pronounced ^alid according to the common law of England 
as it existed prior to the Marriage Act. Gibbs, Chief Justice, said : 
" In this country we judge of the validity of a marriage by what is 
called the Marriage Act, but as that statute does not follow subjects 
to foreign settlements, the question remains whether this would have 
been a valid marriage here before that act passed. The important 
point of the case, viz., what the law is by which such a question is to be 
governed, was most ably and fully discussed in the case of Dalrymple 
v. Dalrymple, 1 which has been so often alluded to, and the judgment 
of Sir William Scott has cleared the present case of all the difficulty 
which might, at a former time, have belonged to it. From the rea- 
sonings there made use of, and from the authorities cited by that 
learned person, it appears that the canon law is the general law 
throughout Europe as to marriages, except where that has "been 
altered by the municipal law of any particular place. From that 
case, and from those authorities, it also appears that, before the Mar- 
riage Act, marriages in this country were always governed by the 
canon law, which the defendants, therefore, must be taken to have 
carried with them to Madras. It appears, also, that a contract of 
marriage, entered into per verba de prsesenti, is considered to be an 
actual marriage; though doubts have been entertained whether it be 
so unless followed by cohabitation. In the present case a ceremony 
was performed, "the regularity of which it is unnecessary to discuss, 
because it was followed by cohabitation. All that is requisite, there- 
fore, by the canon law, has, been amply satisfied." 

12. The case of Dalrymple v. Dalrymple, 3 referred to in the fore- 

. J And see the remarks of Lord Kenyon in Reed v. Passer, Peake's Cas. 232, where 
he pronounces a contract de prsesenti, " ipmm matrimonium.'' 
2 Latour v. Teesdale, 8 Taunt. 830; 4 Eng. C. L. R. 299. 

8 Dalrymple v. Dalrymple, 2 Hagg. Con. R. 54 ; 4 Eng. Ec. R. 485. A full state- 
ment of the case is also contained in Halkerston's Dig. of the Marriage Law of Scot- 
land, pp. 380 to 394 inclusive. 



64 THE LAW OP DOWER. [CH. III. 

going opinion of Chief Justice Gibbs, was a suit brought in the Con- 
sistory Court of London to affirm a Scotch clandestine marriage, 
decided by Lord Stowell in 1811, and appealed to the Court of 
Arches, and thence to the High Court of Delegates, and decided by 
the latter in the year 1814. It had been preceded by the case of 
McAdam v. Walker, 1 which was instituted in 1805, and passing 
through the Scotch courts, was eventually carried to the House of 
Lords, and there decided in 1813. In both these cases the mar- 
riages had been contracted without clerical aid, and in every court 
where the question of their validity was considered, they were held 
good. So far as Scotland is concerned, these decisions are regarded 
as forever putting the question at rest. 2 

13. Although the Dalrymple case arose in Scotland, it was, for a 
number of years, commonly understood as settling the law for those 
portions of the British dominions not embraced within the operation 
of the Marriage Act, and as declaratory, indeed, of the ancient mat- 
rimonial law of England. The decision was admitted on all hands 
to be in accordance with the principles of the continental system as 
administered prior to the Council of Trent, and it was supposed no 
good reason could be urged why England should stand as an excep- 
tion to the application of that general rule. Accordingly we find 
some of the English text writers, whose works were published ante- 
rior to the case of The Queen v. Millis, noticed hereafter, 3 giving it as 
an established principle in the law, that a contract of marriage per 
verba de prsesenti, without the aid of the sacerdotal office, or the 
presence of any one clothed in holy orders, constituted, before the 
Marriage Act, a legal marriage. 4 And a case 5 occurring shortly be- 
fore that of The Queen v. Millis, is referred to in Jacob's Appendix, 
No. 1, to Boper on Husband and Wife, 6 where, upon the trial of an 
issue out of Chancery on the legitimacy of a person born before the 
Marriage Act, the Lord Chief Justice of the King's Bench is said to 
have ruled, that at that period a contract of matrimony per verba de 
prsesenti amounted to a perfect legal marriage. On a motion for a 
new trial, the question was elaborately argued before the Lord Chan- 
cellor, but did not ultimately call for a decision. 

I McAdam v. Walker, 1 Dow. 148 ; Halkerston's Dig. of Mar. Law, 436. 

II Bishop, Mar. and Div. <S 158; 1 Fras. Dom. Rel. 87 et eeq,; Halkerston's Dig. 
Mar. Law, 64-68. And see Macqueen, H. & W. 6. 

s Post, \ 15. * Shelford, Mar. and Div. 31 ; Park on Dower, 8. 

» Beer v. Ward. 6 See, also, 2 Bright, Husb. and Wife, 369. 



CH. III.] MARRIAGE AS A REQUISITE OF DOWER. 65 

14. But shortly after the judgment of the court in the case last 
referred to, Mr. Jacob, the learned editor of "Roper on Husband 
and Wife," prepared an elaborate article, evincing great learning 
and industry, in which he sought, upon a careful review of all the 
adjudged cases, and by the aid of such light as was furnished by 
different legislative enactments, to show that the views of the lord 
chief justice, as expressed in Beer v. Ward, had no support in the 
common law of England. 1 It would be a work of supererogation to 
here recapitulate his arguments, or review the authorities which he 
cites, inasmuch as the article itself is accessible to all who desire to 
consult it. His conclusion as to the result of the authorities is thus 
stated: "The various authorities here adduced establish the proposi- 
tion that, according to the law administered in England before the 
Marriage Act, a matrimonial contract de prsesenti was essentially 
distinct from a marriage solemnized by a person in holy orders ; that 
it did not confer on the woman the right to dower ; on the man the 
right to the woman's property; or on the issue the rights of legiti- 
macy ; and that it did not render a subsequent marriage with a third 
person ipso facto void at law, though it formed a ground for a sen- 
tence annulling it. They seem also to show that, according to the 
ecclesiastical law, the contract did not give any right, except to call 
for a performance of it by actual solemnization, not justifying co- 
habitation, and not conferring conjugal rights; and that at the 
common law it had no effect, though in cases, where the parties co- 
habited and were reputed to be man and wife, this might be sufficient 
evidence for the purposes of some actions in which strict proof was 
not required." 2 

15. In the case of The Queen v. Millis, 3 which in 1844 came before 
the House of Lords on an appeal from Ireland, the above views sub- 
stantially were held to be law. That case was a prosecution for 
polygamy. The defendant Millis was a member of the Established 
Church ; he was married in Ireland to a woman who was either a mem- 
ber of the same church or a dissenter. The ceremony was performed 
by a Presbyterian minister according to the form usually observed by 
Presbyterian dissenters. The parties afterwards cohabited for two 
years as husband and wife. Subsequently, and while this woman 



1 App. (No. 1,) Roper on H. and W.; 2 Bright, H. and W. 369. 

2 2 Roper, H. and W. 474; 2 Bright, H. and W. 397. 

3 Queen v. Millis, 10 CI. & F. 534. 
VOL. I. 5 



66 THE LAW OF DOWER. [CH. III. 

was living, he married in England another woman, observing, in all 
essential particulars, the requirements of the Marriage Act. There- 
upon an indictment was found against him in Ireland for polygamy, 
and the question was whether the first marriage was sufficient to 
sustain the indictment. It was clear that it contained all the requi- 
sites of a contract per verba de prsesenti, and if, by the common 
law of England, such a contract constituted a legal marriage, the 
defendant was guilty as charged. The Irish judges were about 
equally divided in opinion. While the case was pending before the 
English lords, they consulted the common law judges of England, 
who unanimously advised that the first marriage, as a foundation for 
the indictment, was invalid. The lords who gave judgment were 
equally divided; Brougham, Denman, and Campbell concurred in 
holding the first marriage good, while Lord Chancellor Lyndhurst, 
Cottenham, and Abinger were of a contrary opinion. The rule sem- 
per prsesumiter pro negante was applied, and judgment rendered for 
the defendant. The question was most thoroughly considered and 
elaborately discussed. Indeed, the arguments of counsel, the opinions 
of Chief Justice Tindall and of the lords above named who gave their 
views seriatim, appear to have entirely exhausted the subject. 1 The 
case of Catherwood v. Caslon, 2 which was an action for criminal con- 
versation, involved a similar question, and final judgment was sus- 
pended until the determination of The Queen v. Millis, then pending 
in the House of Lords; and afterwards judgment was rendered in 
conformity to the decision given in that case. 

16. The case of The Queen v. Millis is supposed by some to be 
decisive of the question, and to settle it permanently in England 
and her colonies. Accordingly we find one of the most approved 
text writers on the subject of the marriage contract, of modern times, 
stating it as a settled proposition, on the authority of that case, that 
the ancient matrimonial law of England differed essentially from 
that which had obtained in Scotland, and also on the continent 
anterior to the decree of the Council of Trent. 3 "This," he says, 
"I take to have been the great point established in the case of the 
Irish marriage above referred to ; which, though carried in the House 
of Lords with infinite difficulty, and in spite of many strong, and as 



i Bishop, Mar. and Div. \\ 159, 160. 

2 Catherwood v. Caslon, 13 Meeson & Welsby, 261. 

3 Macqueen, H. and W. 2-6. 



CH. III.] MARRIAGE AS A REQUISITE OF DOWER. 67 

some think, insuperable arguments opposed to it, must henceforth 
be regarded as settled and concluded in all legal reasoning on the 
subject; the short general proposition derivable from the adjudica 
tion being that, by the ancient law of England, a marriage by private 
contract was good only for certain purposes, and those not the most 
important ones; no marriage being absolutely perfect until cele- 
brated in facie eeelesise by the intervention of a person in holy 
orders; that is to say, orders conferred by Episcopal authority." 1 
And he remarks further that a private marriage or contract de prse- 
senti " was, in the first place, not sufficient to give the woman the 
right of a widow in respect to dower ; nor secondly, to give the man 
the right of a husband in respect of the woman's property; nor 
thirdly, to render the issue begotten legitimate; nor fourthly, to 
impose upon the woman the disabilities of coverture ; nor fifthly and 
lastly, to make the marriage of either of the parties (living the 
other) with a third person void; all these consequences being con- 
fined exclusively to marriages solemnized in facie eeelesise." 2 

17. Notwithstanding the weight of authority naturally and reason- 
ably attaching to The Queen v. Millis, the result arrived at in that 
case is not regarded as entirely satisfactory, even in England and 
the British colonies. The fact that the question was decided by a 
divided court, and that the ecclesiastical judges who, by reason of 
their peculiar pursuits, are supposed to be better qualified than the 
common law judges to solve questions relating to the marriage con- 
tract, were for sustaining the marriage, goes very far to weaken the 
effect of the decision as a binding authority in other cases. In 
Catterall v. Catterall, 3 which was a suit for divorce on the ground of 
adultery, determined in the Consistory Court of London in 1847, 
Dr. Lushington held that a marriage contracted per verba de prse- 
senti before a Presbyterian clergyman in New South Wales was a 
sufficient foundation for the divorce. "I am not disposed," said the 
learned doctor, " to carry the decision in that case — (The Queen v. 
Millis) — one iota further than it went, for two reasons : first, as the 
law lords were divided, it was only in consequence of the form in 
which that case came before them there could be considered to be a 
judgment at all; in the second place, were I to hold the presence of 
a priest in the orders of the Church of England to be necessary, I 
should be going the length of depriving thousands of couples, married 



1 Page 6. 2 Pages 4, 5. 8 Catterall v. Catterall, 1 Robertson, 580. 



68 THE LAW OF DOWER. [CH. III. 

in the colonies and the East Indies, (where till of late there were no 
chaplains,) of the right to resort to this court for such redress as it 
can give in cases of cruelty or adultery. Until I am controlled by 
a superior authority, for no further examination of the question will 
induce me to change my opinion, most unquestionably I shall hold 
in this and all other similar cases that, where there has been a fact 
of consent between two parties to become man and wife, such is a 
sufficient marriage to enable me to pronounce, when necessary, a 
decree of separation." The court also. held that this marriage could 
not be decreed void in a suit for nullity. 1 

18. In a still more recent case the Court of Queen's Bench in Ire- 
land decided that a clergyman may marry himself, and Perrin, J., in 
his opinion denied that The Queen v. Millis was an authority to bind 
the court; because, while three learned and eminent law lords held 
one opinion, three as equally learned and distinguished pronounced 
an opinion the other way. 2 The Court of Queen's Bench of Upper 
Canada have also intimated an opinion in accordance with the above 
views of Mr. Justice Perrin. 3 It would seem, therefore, notwith- 
standing the decision in The Queen v. Millis, that the question can 
not be regarded as conclusively settled even in England. 



1 Catterall v. Sweetman, 1 Robertson, 304. 

2 Beamish v. Beamish, 1 Jur. n. a. part ii. for Not. 1855; Bishop, Mar. and DiY. 
p. 164, \ 173, note. 

* Doe v. Breakey, 2 Upper Canada Q. B. n. s. 349. 



CHAPTER IV. 



OF MARRIAGE PER VERBA DE PR^ESENTI IN THE UNITED STATES. 



§ 1, 2. Views of American commen- 
tators. 

3-8. The doctrine in New York. 
9. Maryland. 

10. New Jersey. 

11. Pennsylvania. 

12. California. 

13. Ohio. 

14. Louisiana. 

15. 16. Kentucky. 
17. Alabama. 



I 18. Texas. 
19, 20. Massachusetts. 
21-24. Maine. 
25-27. New Hampshire. 

28. Tennessee. 

29, 30. Vermont. 

31. Mississippi. 

32. North Carolina. 

33. 34. Rule as held in the Supreme 
Court of the United States. 



1. It is not a little remarkable that while English writers and 
English judges have differed so widely as to the rule of the common 
law with reference to the marital contract, the law writers upon this 
side the Atlantic have, with entire unanimity, concurred in support- 
ing the rule as generally understood in England before the decision 
in The Queen v. Millis. Thus, Chancellor Kent says: 1 "No pecu- 
liar ceremonies are requisite, by the common law, to the valid cele- 
bration of the marriage. The consent of the parties is all that is 
required ; and as marriage is said to be a contract jure gentium, 
that consent is all that is required, by nature or public law. If the 
contract be made per verba de prsesenti, and remains without cohab- 
itation, or if made per verba de futuro, and be followed by consum- 
mation, it amounts to a valid marriage, and which the parties (being 
competent as to age and consent) can not dissolve, and it is equally 
binding as if made in facie ecclesise. There is no recognition of any 
ecclesiastical authority in forming the connection, and it is considered 
entirely in the light of a civil contract. This is the doctrine of the 
common law, and also of the canon law, which governed marriages in 
England prior to the marriage act of 26 Geo. II., and the canon law 
is also the general law throughout Europe as to marriages, except 



» 2 Com. 86, 87. 



(69) 



I I 



70 THE LAW OP DOWER. [CH. IV. 

where it has been altered by the local municipal law." The cases 
cited in support of these views, omitting the American cases, are 
Jesson v. Collins, Dalrymple v. Dalrymple, Latour v. Teesdale, and 
M'Adam v. Walker, all of which are noticed in the preceding chap- 
ter, and were carefully considered by the judges and law lords in 
The Queen v. Millis. 

2. Judge Reeve, in his work on the Domestic Relations, is equally 
clear and decided in his views: 1 "There is nothing," he says, "in 
the nature of a marriage contract that is more sacred than that of 
other contracts, that requires the interposition of a person in holy 
orders, or that it should be solemnized in a church. Every idea of 
this kind, entertained by any person, has arisen wholly from the 
usurpation of the Church of Rome on the rights of the civilian. She 
claimed the absolute control of marriages on the ground that mar- 
riage was a sacrament, and belonged wholly to the management of 
the clergy. The solemnization of a marriage by a clergyman was a 
thing never heard of among primitive Christians until Pope Innocent 
III. ordered it otherwise. The only ceremony in practice among 
them, was, for the man to go to the house where the woman dwelt, 
and, in the presence of witnesses, to lead her away to his own house. 
It is a mere civil transaction, to be solemnized in such a manner as 
the legislature shall direct, whether by a clergyman or any other 
person." In a note 2 to the text the editor refers to and approves 
the views of Chancellor Kent quoted in the preceding section ; and 
he adds : " The doctrine that the contract of marriage rests upon 
the same footing, so far as its valid inception is concerned, is prob- 
ably the doctrine of both the common and the civil law. The con- 
sent of parties, without any peculiar forms or ceremonies, is all that 
is required to its valid celebration." But no additional English 
authority except the case of Bunting v. Lepingwell (from Coke's 
Reports) is referred to. Professor Greenleaf, in an edition of his 
work on Evidence, published since the decision of The Queen v. 
Millis, does not hesitate to adopt, and indorse without qualification, 
the views of Chancellor Kent and Judge Reeve ; 3 and Mr. Bishop, 
in his recent work on Marriage and Divorce, after very full consid- 
eration of the question, arrives at the same result. " Chancellor 
Kent, Judge Reeve, and Professor Greenleaf," he remarks, "in their 



1 Reeve's Dom. Rel. p. 196. 2 Note 1. 

3 2 Greenl. Ev. 2d ed. g 460. 



CH. IV.] MARRIAGE IN THE UNITED STATES. 71 

text-books, have considered clerical intervention at common law un- 
necessary, and this may ■well be deemed the American doctrine. 
The doctrine, otherwise expressed, is, that the marriage, by mere 
consent, as explained in our fifth chapter, is good throughout the 
United States, except in some States where local statutes have pro- 
vided otherwise." 1 Notwithstanding this concurrence of opinion on 
the part of the text writers, however, an examination of the ad- 
judged cases in the United States will show much the same contra- 
riety of decision as has existed in Great Britain. 

3. New York. — Fenton v. Reed, 2 decided in 1809, is the earliest 
reported case, involving this question, determined in New York. A 
married woman, whose husband had been absent in foreign parts for 
about seven years, and reported and believed to be dead, contracted 
a second marriage. Subsequently the first husband returned, and 
continued to reside in the neighborhood some eight years, when he 
died. He made no objection to the connection subsisting between 
his wife and the second husband, and never in any manner interfered 
with it. After his death they continued to cohabit as husband and 
wife for about six years, at the expiration of which time the second 
husband deceased.* There was no proof that any contract of mar- 
riage had been solemnized between them subsequent to the death of 
the first husband. The question arose whether these facts were suf- 
ficient to establish a legal marriage so as to make the woman the 
widow of the man last deceased. The court determined the question 
in her favor upon two grounds: first, because proof of an actual 
marriage was not necessary, strict proof being only required in pros- 
ecutions for bigamy, and actions for criminal conversation; and 
under the circumstances proved it might fairly be presumed that an 
actual marriage had taken place after the death of the first husband; 
secondly, because, in the language of the court, " no formal solemni- 
zation of marriage was requisite. A contract of marriage made per 
verba de prwsenti," they said, "amounts to an actual marriage, and 
is as valid as if made in facie ecclesise." The first proposition was 
affirmed in the same court, in the case of Jackson v. Claw, decided 
in 1820. 3 

4. In Jackson v. Winne, 4 the ceremony was performed by a justice 
of the peace, but it was made a question whether the man had con- 



i Bishop, Mar. and Div. \ 162. * Fenton v. Reed, 4 John. 52. 

3 Jackson v. Claw, 18 John. 346. * Jackson v. Winne, 7 Wendell, 47. 



72 THE LAW OF DOWER. [CH. IV. 

sented to the marriage. While in custody upon a charge of bastardy, 
the magistrate before whom he was taken inquired of him and of the 
woman who had preferred the charge, if they consented to be mar- 
ried. The justice also directed them to join hands, whereupon the 
defendant dropped his hand and turned from the complainant. She 
immediately took his hand and held it until they were pronounced 
husband and wife. Upon the refusal of the defendant to take the hand 
of the woman, the justice hesitated, but after a moment's delay pro- 
ceeded and concluded the ceremony. During the whole time the defend- 
ant said nothing. Three days afterwards the defendant married another 
woman, with whom he cohabited until her death ; after that event 
he contracted still another marriage. The complainant also married, 
and continued to reside with the husband of the second marriage until 
his death. It was contended by counsel that what took place before 
the justice did not amount to a marriage; or if the consent of the 
man could be implied from the circumstances, the marriage contract 
was nevertheless void, as made under duress. In delivering their 
opinion, the court employed the following language : " The maxim 
of the civil law, nuptias non coneubitus sed consensus faeit, Dig. 
L. 50, tit. 17, § 30, or one of the same import, has ever been re- 
garded in courts of common law as a good definition of marriage. 
There is an expression in Wood's Institutes of the Laws of England, 
Inst. 57, which, if examined without its context, might seem to impfy 
that cohabitation, as well as consent, was required to make a valid 
marriage. 'Marriage, or matrimony,' he observes, 'is an espousal 
de prsesenti, and a conjunction of man and woman in a constant 
society;' but the very next sentence is a translation of a Latin maxim 
similar to the one quoted from the civil law. 'Mutual consent,' he 
says, ' makes the marriage before consummation.' The language of 
Jacob, in his Dictionary, tit. Marriage, is less liable to misconstruc- 
tion. He says, ' Nothing more is necessary to complete a marriage 
by the laws of England, than a full, free, and mutual consent between 
parties' not incapable of entering into such a state. Wood, in his 
Institutes of the Civil Law, p. 120, says that ' Espousals de prsesenti, 
or marriage, is contracted by consent only, without carnal knowl- 
edge.' " And the court, being satisfied from the evidence that the 
defendant in the bastardy proceeding had, in contemplation of law, 
consented to the marriage, adjudged it sufficient, although the effect 
of this decision was to bastardize the issue of his subsequent mar- 
riages. 



CH. IV.] MARRIAGE IN THE UNITED STATES. 73 

5. The case of Rose v. Clark 1 was determined by Chancellor Wal- 
worth, in January, 1841. He appears to have been decidedly of the 
opinion that by the ancient common law of England a marriage was 
invalid unless celebrated in facie eoclesise, 2 relying in support of this 
view upon the decision in the case of Del Heith, determined in the 
fourteenth century, (34 Edw. I.,) a report of which is found in Nico- 
las' Adult. Bast. 31, 567 ; and also upon Foxcroft's case, decided in 
10 Edward I., a brief note of which is contained in 1 Roll. Ab. 359, 
and in 4 Viner's Ab. 218, pi. 18. He adds, however, that the law 
on this subject was unquestionably changed at the Reformation, if 
not before. "Eor," he observes, "it is now ar settled rule of the 
common law, which was brought into this State by its first English 
settlers, and which was probably the same among the ancient Prot- 
estant Dutch inhabitants, that any mutual agreement between the 
parties to be husband and wife in prsesenti, especially where it is 
followed by cohabitation, constitutes a valid and binding marriage, 
if there is no legal disability on the part of either to contract matri- 
mony." 3 

6. This case was shortly followed by that of Starr v. Peck, 4 where 
it was, in like manner, held by the Supreme Court of the State, that 
at common law no formal ceremony was necessary to give validity to 
a marriage, and that a contract between the parties, per verba de prse- 
senti, was sufficient. "It is true," said the court, "that the parties 
had power to contract marriage inter se before the husband went to 
sea, without the intervention of a clergyman." 5 And the judge, who 
delivered the opinion of the court, concluded as follows : " The evi- 
dence in the case at bar may, I think, be considered quite strong that 
Abby's parents had, before her birth, made a contract of marriage, 
either per verba de prsesenti or futuro; and whether in the one form 
or the other, the consummation which resulted in her birth, accord- 
ing to the cases cited, rendered the marriage complete." 

7. Clayton v. Wardell, 6 decided by the Court of Appeals, arose 
after the determination of The Queen v. Millis, and that case is 
alluded to by some of the judges in their opinions ; but the court 
adhered to the views expressed in the previous cases, and declined 



i Rose v. Clark, 8 Paige, Ch. R. 574. a See p. 579. 

8 See, also, In the matter of Taylor, 9 Paige, 611, 615. 
* Starr v. Peck, 1 Hill, 270. 5 p age 272. 

« Clayton v. Wardell, 4 Comst. R. 230. 



74 THE LAW OF DOWER. [CH. IV. 

to adopt the more recent English doctrine. "A valid marriage," ob- 
served Cowen, Judge, " may exist without any formal solemnization. 
By the ancient common law of England, marriage, being regarded as 
a sacrament, must, to be valid, have been celebrated in facie ecclesise. 
But since the Reformation it has been regarded as a civil contract. 
And, like every other contract, all that is necessary for its validity 
is the deliberate consent of competent parties entering into a present 
agreement to take each other for husband and wife." And Gardiner, 
Judge, although he dissented from the final conclusion of the court, 
nevertheless concurred in the views above expressed. " Whatever may 
be the rule now in England," he remarked,. " with us, marriage has 
always been considered as a civil contract, which, if made per verba 
de prsesenti, without cohabitation, is valid." 1 

8. In Jacques v. The Public Administrator, 2 the surrogate ex- 
pressed grave doubts as to the propriety and expediency of adopting 
the supposed' rule of the common law; and in Turpin v. The Public 
Administrator, 3 these doubts were repeated. But the late case of 
Cheney v. Arnold 4 may perhaps be regarded as finally settling the 
question in New York, for while in that case the Court of Appeals 
repelled the doctrine that a contract per verba de futuro, followed by 
copula, constituted a good marriage, they held expressly that a con- 
tract per verba de prsesenti was sufficient. After a full discussion of 
the question, the court say: "It follows that the doctrine of the 
canon law that a contract of marriage per verba de futuro, followed 
by carnal intercourse, did not become the law of this State by force 
of our adoption of the common law of England, for it was not a part 
of that common law. Should it be said that this course of reasoning 
would repudiate marriages per verba de prsesenti. without solemniza- 
tion, I answer that the validity of such marriages is firmly established 
by judicial decisions in this State, which we are not at this day at 
liberty to question." 

9. Maryland. — The only case to be found in the Maryland Re- 
ports touching the requisites of a marriage contract, is Cheseldine v. 
Brewer, decided in the Provincial Court in 1739. 5 The action was 



1 See, also, Jenkins v. Bisbee, 1 Edw. Ch. 377; Hicks v. Cochran, 4 Ibid. 107. 

2 Jacques v. The Public Adm., 1 Bradf. Sur. R. 499. 

3 Turpin v. The Public Adm., 2 Ibid. 424; see, also, Cunningham v. Burdell, 4 
Ibid. 343. 

* Cheney v. Arnold, 15 N. Y. Rep. (1 Smith,) 345. 
5 Cheseldine v. Brewer, 1 Harris & M'H. 152. 



OH. IV.] MARRIAGE IN THE UNITED STATES. 75 

ejectment, and upon the trial in the court below, the plaintiff, to 
prove that he was the legitimate son and heir of Kenelm Cheseldine, 
•who died seized of the land in question, introduced evidence showing 
that said Kenelm, his reputed father, cohabited with Mary Sheppard, 
his mother, from the year 1712 to the time of the death of the said 
Kenelm, which occurred in 1717; and that during that time the said 
Kenelm and Mary had often declared that they were married ; that 
he treated her as his wife, except at some particular times, when 
intoxicated or in a passion ; that the plaintiff was born after the 
cohabitation commenced, and that the said Kenelm owned him for 
his son. The report of the case then proceeds to show that "the 
defendant prayed the justices to declare to the jury that the evidence 
was not sufficient to prove the lessor of the plaintiff to be the legiti- 
mate son of Kenelm Cheseldine, his supposed father, as no actual 
marriage was proved. But the justices directed the jury that if they 
found the said Kenelm and Mary had consented and agreed to be 
man and wife, and had cohabited and copulated as such before the 
birth of the lessor of the plaintiff, that they should render their ver- 
dict for the plaintiff. To this direction of the court the defendant 
excepted. And this court affirmed the judgment." The opinion of 
the court not being given in extenso, it cannot be ascertained with 
certainty upon what ground the decision was placed. There cer- 
tainly was no necessity for express proof of an actual marriage, 
as claimed by defendant's counsel; and from the facts proved, 
the jury would clearly have been justified in finding that an actual 
marriage had taken place. The court below, however, do not appear 
to have noticed this phase of the case, but simply instructed the jury 
that a marriage in prsesenti was sufficient, and invested the issue of 
such marriage with all the rights of legitimacy. 

10. New Jersey. — Pearson v. Howey 1 was a proceeding for dower. 
The question was whether a justice of the peace might solemnize a 
marriage out of the county for which he was commissioned, and the 
point was decided in the affirmative. But Mr. Justice Ford also 
maintained the validity of the marriage as a contract de prsesenti. 
"I consider it to have been long and fully settled," he said, "that 
such is a valid marriage, even if William Harrison, Esq. had not 
been a justice of the peace. It is a maxim of the common law, as' 
ancient as the law itself, that ' consensus non aoncubitus, facit nup- 

1 Pearson v. Howey, 6 Halst. 12 ; see pp. 18-21. 



76 THE LAW OF DOWER. [CH: IV. 

tiasf it is the contract makes the marriage. Such also has ever 
heen the law or maxim of the Church in all ages, as well as of the 
common law." He reviewed some of the old English cases; noticed 
the New York case of Fenton v. Reed, and after expressing the opin- 
ion that the legislature had not changed the common law, added: 
" Courts of justice are not authorized to alter the law without legis- 
lative authority in any case, and most assuredly not in a case of such 
universal importance as that of marriage." 

11. Pennsylvania. — Hantz v. Sealy 1 was an action of assumpsit 
brought to recover the amount of the personal estate of Henry Sealy, 
late husband of the plaintiff, bequeathed to her by his will. Among 
the defences interposed was one alleging the plaintiff to be the wife 
of the defendant. In support of this defence it was proved that a 
marriage took place between the parties before a clergyman in Janu- 
ary, 1799 ; that they had given receipts in the name of Jacob and 
Mary Hantz ; that they cohabited as husband and wife ; had chil- 
dren, and had executed deeds for land in which she was styled his 
wife. But it appeared that at the time of this marriage the defend- 
ant had another wife living, from whom he had separated, effectually, 
as he supposed, but without any legal divorce. A divorce was after- 
wards obtained, and Hantz and Mrs. Sealy having come to Mr. 
"Watts, their counsel, on business, were advised by him to celebrate 
a new marriage. Hantz then said, "I take you (the plaintiff) for 
my wife;" and the plaintiff being told that if she would say the same 
it would be a complete marriage, replied, "to be sure he is my hus- 
band good enough." Mr. Watts advised them to repeat the mar- 
riage in a solemn manner before a clergyman, and he thought they 
went out for that purpose, but it was never done. The jury were 
instructed "that as to the cohabitation and acts of the parties, they 
did not amount to a marriage, but were facts from which a marriage 
might be inferred. They were circumstances on which to ground a 
presumption of marriage, and might be met with circumstances show- 
ing that they were founded on some fact unconnected with marriage. 
As for instance, if the cohabitation was merely the consequence of 
the marriage before the clergyman, which was clearly void, and if 
the acknowledgments referred entirely to the fact of that marriage, 
then they could not be considered as referring to any other marriage, 
nor have any weight in proving the marriage contended for. These 

1 Hantz v. Sealy, 6 Binn. 405. 



CH. IV.J MARRIAGE IN THE UNITED STATES. 77 

facts would entirely destroy the presumption of a legal marriage that 
would otherwise arise from the cohabitation and acknowledgments ; 
and the jury were to decide upon them. As to the marriage before 
Mr. Watts, there was no doubt that marriage in Pennsylvania was so 
far a civil contract as to be governed by the municipal laws of the 
State, viz., the statute and common law, as in England. There was 
no particular form of ceremony, established by the law of Pennsyl- 
vania, which was to govern in all cases ; but marriage was a very 
important and solemn institution, and the manner in which it was to 
be contracted ought to be suitable to the nature and importance of 
the engagement. It was not absolutely necessary to be done before 
a clergyman, or a magistrate, but it ought to be entered into with 
consideration and deliberate assent, and ought to be done formally 
and solemnly. The court did not think it necessary to lay down 
any rule as to what form and ceremonies might be requisite to form 
a marriage; but they were decidedly of opinion that the facts which 
occurred before Mr. Watts did not constitute a legal marriage." In 
the Supreme Court this charge was approved, the court holding that, 
keeping in view the former adulterous connection, the circumstances 
proved were too slight and equivocal to make out a legal marriage. 

In Chambers v. Dickson, 1 which was a proceeding for dower, it 
was held that cohabitation and reputation, especially if of an ancient 
date, is good evidence to be left to a jury to prove marriage. In the 
course of his opinion, Tilghman, Ch. J., said : " Our marriages are 
celebrated sometimes by clergymen, sometimes by justices of the 
peace, and sometimes before witnesses without the intervention of 
justices or clergymen." 2 These cases, therefore, may be regarded 
as establishing the validity of marriages in prxsenti in Pennsyl- 
vania. 

12. California. — In this State a private contract of marriage is 
held valid. This point was ruled in Graham v. Bennet, 3 the parties in 
that case having signed a written contract of marriage in the presence 
of witnesses. "Marriage," the court said, "is a civil contract, and no 
form is necessary for its solemnization. Where parties are able to 
contract, an open avowal of the intention, and assumption of the 
relative duties which it imposes, are sufficient to render it valid and 



1 Chambers v. Dickson, 2 S. & R. 477. 

2 See, also, Rodebaugh v. Sauks, 2 Watts, 1. 

3 Graham v. Bennet, 2 Cal. 503. 



78 THE LAW OP DOWER. [CH. IV. 

binding." But it is necessary that there should be an actual contract 
of present marriage, and an honest purpose to assume at once the 
duties of that relation. Therefore, where the plaintiff averred in her 
complaint, in a suit brought for her distributive share of the estate 
of an alleged deceased husband, that the deceased made proposals of 
marriage to her which she accepted, and consented to live with him 
as his true and lawful wife, and that, in accordance with his wishes, 
she thereupon lived and cohabited with him as his wife, always con- 
ducting herself as a true, faithful, and affectionate wife should do, it 
was held, on demurrer to the complaint, that these were insufficient 
averments of the existence of a marriage ; that they amounted only 
to prima facie evidence of marriage; an agreement to live together 
as husband and wife, not of itself amounting to a contract of mar- 
riage, but being consistent with the idea that the arrangement was 
to be of a temporary character only. 1 

13. Ohio. — In this State it has recently been determined that a 
contract of marriage per verba de prsesenti, made in good faith, con- 
stitutes a valid marriage. Upon a trial for bigamy, a question was 
raised whether the person who solemnized the /second marriage had 
authority to perform that ceremony within the State. The court 
which tried the case instructed the jury "that it made no difference 
whether the person so solemnizing said marriage was authorized to 
do so or not ; that if solemnized by whomsoever, it was a marriage 
if followed by cohabitation as husband and wife." The defendant 
was convicted and sentenced, and on error the Supreme Court affirmed 
the judgment. The decision in The Queen v. Millis was adverted to 
and considered at length, but the reasoning upon which the marriage 
in that case was held invalid, was deemed inapplicable under the 
legislation of Ohio. The court, however, hesitated to adopt, without 
qualification, the general proposition, that a contract per verba de 
prsesenti constitutes a good marriage. " The requisites to constitute 
a valid marriage," they said, "independent of any positive law, have 
been stated in many authorities, but it must still be a question on 
the facts of the particular case. It may be that in most cases a 
ready answer may be given upon any statement of the facts, whether 
there was a marriage or not, and those who were present at the time 
the consent was given, and cognizant of the conduct toward each 
other, of the parties thereafter, could very rarely fail in forming a 

1 Letters v. Cady, 10 Cal. 533. 



CH. IV.] MARRIAGE IN THE UNITED STATES. 79 

correct conclusion. But when it is stated, in general language, that 
a contract per verba de praesenti constitutes a valid marriage, the 
mind feels some hesitation in assenting to the naked proposition, and 
a desire, in language attributed to Lord Eldon, to have it clothed in 

circumstances To constitute a marriage, it must appear 

from the acts of the parties, for words on such an occasion are acts 
forming part of the res gestse, that they did, in the homely but strong 
language of our statute, 'join together as husband and wife.' How 
this shall appear, in any case in which it is alleged that persons have 
joined together as husband and wife, without pursuing the mode pre- 
scribed by the statute, must depend on the circumstances. There 
must be a contract of present marriage — it must appear that the 
woman was taken as a wife, and that the man was taken as a hus- 
band. The circumstances of publicity in entering into the contract, 
and of cohabitation thereafter as husband and wife, are most import- 
ant to show the intent with which any words were used, and without 
such circumstances, under the manifest policy of our laws on the sub- 
ject, and the habits and feelings of our people, an intent to form the 
honorable relation of marriage could not properly be found." 1 

14. Louisiana. — In this State the rule as it existed on the conti- 
nent, prior to the Council of Trent, is adopted by the courts. In 
the case of Holmes v. Holmes, 3 determined in 1834, it was decided 
that by the law of Louisiana marriage is regarded in no other light 
than as a civil contract, depending essentially on the free consent of 
parties capable by law of contracting. " Our code," the court 
added, " does not declare null a marriage not preceded by a license, 
and not evidenced by an act signed by a certain number of witnesses 
and the parties ; nor does it make such an act exclusive evidence of 
marriage." In the more recent case of Patton v. Philadelphia, 3 the 
subject was very thoroughly discussed, and the doctrine of the old 
canon law firmly established in that State. The facts of that case 
bearing upon this question were as follows : In 1799 one Abraham 
Morehouse, by an act passed before the commandant of Fort Miro, 
in the District of Ouachita, acting as a notary public, agreed to 
take as his wife Ele"nore Hook. The commandant stated in the act 
that it was passed before him in conformity with a custom sanctioned 
by the Government, on account of the want of spiritual assistance, 

i Carmichael v. The State, 12 Ohio St. 553, 559. 

2 Holmes v. Holmes, 6 La. 463. 

3 Patton v. Philadelphia, 1 La. An. 98. 



80 THE LAW OP DOWER. [CH. IV. 

and that the marriage was to be solemnized before the church on the 
first opportunity. Abraham Morehouse, in the act, declared himself 
to be the widower of Abigail Young, and stipulated with Ele"nore 
Hook and her curator that the rights of the children of the second 
and of the previous marriage should be the same, whether those born 
of the second marriage were born before or after its solemnization • 
before the church, and whether or not the solemnization took place. 
The daughter of the commandant testified that there was no priest 
at that time in the District of Ouachita ; that she was present at the 
celebration of the marriage before her father ; that the usual formal- 
ities were complied with, and that immediate cohabitation followed, 
as was then the custom of the colony. The marriage was held valid. 
"We conclude, therefore," the court said, after stating the doctrine 
as recognized anterior to the Council of Trent, and the action of the 
kings of Spain with reference to the proceedings of that body, " that 
after the adoption of the Council of Trent, the kings of Spain re- 
tained the power to suspend the operation of that portion of it which 
relates to the celebration of marriages in the remote settlements of 
new colonies yet unprovided with churches" or priests. In proof that 
this power was exercised in Louisiana, we have the historical facts 
that marriages per verba de prsesenti were usual in the remote parts 
of the colony, and that one of the Spanish governors was married 

thus It matters not, therefore, whether it be true as stated 

by one of the witnesses, that Abraham Morehouse refused, subse- 
quently, to solemnize his marriage before the priest. That marriage 
was valid without the solemnization." The doctrine of this case, 
" so far as it declares that the regulations of the Council of Trent in 
regard to marriages were never extended to the colony of Louisiana 
by the king of Spain," was afterwards affirmed in the same court. 1 

15. Kentucky. — The case of Dumaresly v. Fishly, 2 decided in 
Kentucky, is often referred to as holding that a marriage per verba 
de prsesenti is good in law. A critical examination of the opinion 
of the court, however, and of the facts upon which it is predicated, 
will show that the case does not go to the full extent sometimes 
claimed for it. The action was to recover damages for slanderous 
words alleged to have been spoken of the plaintiff by the defendant. 
The defendant pleaded that the plaintiff, at the commencement of 

1 Succession of Prevost, 4 La. An. 347; see, also, Hallett v. Collins, 10 How. 
V. S. R. 174; post, g 34. 

1 Dumaresly v. Fishly, 3 A. K. Marsh. 368. 



CH. IV.] MARRIAGE IN THE UNITED STATES. 81 

the suit, was his lawful wife, and upon this plea issue was joined. 
It appeared from the evidence that some time prior to the com- 
mencement of the suit, a license for the marriage of the plaintiff and 
defendant had been issued by the clerk of the county court of Jef- 
ferson County, Kentucky, with the consent of the plaintiff's father, 
and that the marriage ceremony was performed at the house of her 
father, in Jeffersonville, in the State of Indiana, where she resided, 
by a priest of the Roman Catholic religion, who had previously ob- 
tained from the county court of Nelson County, Kentucky, where he 
resided, a testimonial authorizing him to celebrate the rites of mat- 
rimony ; but that the defendant declined cohabiting with the plain- 
tiff, and that the marriage had not been consummated. No license 
had been issued for the marriage, as required by the laws of Indiana. 
The case, therefore, presented directly the question as to the validity 
of a contract de prsasenti, for the clergyman who solemnized the 
marriage, though licensed by a Kentucky court to perform that rite, 
had manifestly no power or authority to exercise his clerical func- 
tions, in the solemnization of marriages, in the State of Indiana. It 
was the same, therefore, as if the marriage had been contracted in 
the presence and with the aid of a private individual, not clothed 
with ecclesiastical or legal authority. The court sustained the de- 
fence, upon the ground that the contract amounted to a marriage de 
facto, holding that such a marriage was sufficient in all personal 
matters and causes. But they were particularly careful to note the 
distinction between a marriage in fact and a marriage in law, as un- 
derstood by them, showing that by the common law, while the former 
was, as a general rule, good in personal actions, it was essential that, 
in certain real actions, a marriage de jure should be made out. Jus- 
tice Mills dissented from the majority of the court, holding that in- 
asmuch as the defendant had been the first to declare the marriage 
void, and had refused to cohabit with the plaintiff, it did not lie in 
his mouth to insist upon its validity, in an action afterwards brought 
by her to protect her reputation against his assaults. He contended, 
moreover, that if a marriage was not good as such for all purposes, 
it was not good for any purpose whatever ; in fact, that it was no 
marriage at all. And he suggested that it would be unjust to treat 
the personal rights and identity of the woman as in a measure 
merged by a supposed marriage de facto, and intimate at the same 
time a disposition to withhold from her valuable marital rights, par- 
ticularly those of a widow, in the real estate of her alleged husband, 
vol. i. 6 



82 THE LAW OP DOWER. [CH. IV. 

in the event of her being the survivor. This criticism would seem 
to be worthy of especial consideration, and the anomaly suggested 
will be further noticed in a subsequent chapter. 1 

16. In a more recent case, the Kentucky court unhesitatingly in- 
dorsed the ruling in Fenton v. Reed, 2 upon one of the material prop- 
ositions there laid down, and gave to the widow of a man who had a 
former wife living at the time of the marriage, dower in his estate, 
upon a presumed resolemnization of the contract after the death of 
the first wife. The claimant for dower had contracted the marriage, 
and resided with the supposed husband down to the time of his death, 
a period of about twenty-one years, in utter ignorance of the pre- 
existing relation, and in the honest belief that she was the lawful 
wife of the deceased. They had continued to reside together as hus- 
band and wife after the death of the first wife, recognizing that rela- 
tion as subsisting between them, and reputed as such in the commu- 
nity. They had also raised a family of children. "These facts," 
said the court, " authorize, we think, the presumption of a marriage 
after the death of the first wife, and justify the conclusion that the 
defendant was the lawful wife of Donnelly at his death." 3 It will 
be perceived that in this case no question arose, nor was considered, 
as to the sufficiency of a marriage de prsesenti, the conclusion of the 
court being placed upon a supposed actual marriage without refer- 
ence to the form of its solemnization. 

17. Alabama. — In The State v. Murphy, 4 certain parties were in- 
dicted for being engaged in a conspiracy to seduce an unmarried 
female. One of them proposed marriage, and was accepted ; he 
afterwards produced a forged license, representing it to be genuine ; 
he also fraudulently represented a coconspirator to be a person hav- 
ing authority to solemnize marriages, and the ceremony was per- 
formed by the latter, the woman acting in good faith, and relying 
on the truth of the statements thus made to her. The court inti- 
mated, but did not decide the point, that under these circumstances 
the woman might treat the marriage as binding in law. "We have 
said that the guilt of the conspirators can not be affected by the va- 
lidity of the marriage between Miss Buckalow and Watts, and per- 
haps should be going beyond what strict duty requires, were we to 

i Chap. 6. 2 Fenton v. Reed, 4 John. 52 ; ante, g 3. 

» Donnelly v. Donnelly, 8 B. Mon. 113. 

* The State v. Murphy, 6 Ala. s. s. 765 ; 2 West. Law Journ. 192. 



GH. IV.] MARRIAGE IN THE UNITED STATES. 83 

consider whether what transpired established the relation of husband 
and wife. It may, however, be remarked, that the solemnization of 
the contract of espousal is non juris naturalis aut divini, but it is 
juris positivi. Marriage, then, being a civil contract, may it not be 
consummated by persons of competent age, &c, per verba deprse- 
senti, where there is no statute which impliedly or expressly declares 
it void if not solemnized according to express forms ? Are not our 
statutes in respect to marriage directory rather to the officer who is 
authorized to issue a license, and the functionaries who are to cele- 
brate it, than to the parties who enter into this relation ? If this be 
so, could Watts be heard to object that he had not taken Miss Buck- 
alow for his wife, if they both, in answer to the usual questions, as- 
sented to a union ? Whether she might not, if overreached by mis- 
representation and fraud, repudiate him, is another question. With- 
out undertaking to consider the questions we have stated, we have 
thought it proper to propose them, and cite the authorities by which 
they may be answered, that the parties who were the principal per- 
sons in the drama may be brought understandingly to inquire in 
what relation they stand to each other." 

18. Texas. — In this State a contract of marriage was presumed 
under the following circumstances : A marriage took place in Ohio 
in 1809; the parties separated in 1818; the wife shortly afterwards 
disappeared, and there was no trace of her for four years, at the 
expiration of which time the husband emigrated to Texas. In 1822 
the hnsband, and a woman not his wife, presented themselves in one 
of the counties of that State, represented themselves to be husband 
and wife, and were registered as such. They cohabited together 
until 1827, when the man died. Children were born of the connec- 
tion, and in the neighborhood where the parties resided they were 
reputed husband and wife. It was held that under these circum- 
stances the death of the first wife would be presumed, and thus all 
legal impediment to a second marriage be removed. The court fur- 
ther held that they would presume a second marriage to have been 
entered into, even if the connection were shown to have been illicit 
and criminal in the beginning. "Admitting that their original inter- 
course was illicit with the knowledge of both parties," the court ob- 
served, "it would be urging the presumption to an unreasonable 
extent to suppose that the unlawful character of the connection was 
unsusceptible of a change, and that when all legal disabilities had 
ceased to operate, they would voluntarily decline all the honors, 



84 THE LAW OF DOWER. [CH. IV. 

advantages, and rights of matrimony, and prefer an association dis- 
graceful to both parties, but peculiarly degrading to the female, and 
which inflicted upon their innocent offspring the stigma and penalties 
of illegitimacy." 1 

We come now to the consideration of the cases in which the legality 
and validity of marriages de prsesenti are doubted or denied. 

19. Massachusetts. — "A marriage in this State," says Mr. Dane, 
"does not depend on the canon law, but has ever been regulated by 
statutes, passed by the Colony, Province, and State legislatures. 
Hence these statutes must be considered as the foundations on which 
our marriages rest." 2 The decided cases in Massachusetts are in 
accordance with the doctrine here expressed. Thus, in Mangue v. 
Mangue, 3 which was a proceeding for divorce, the following certificate 
was offered in evidence for the purpose of proving the marriage of 

the parties : "Be it remembered that on the 17th day of came 

before me, J. B. one of the justices of the peace for the county of 

, Henry Mangue and Nancy Neale, when the said Henry Mangue 

took the said Nancy Neale by her right hand and voluntarily said, 
' I take this Nancy Neale to be my wedded wife, and I promise to 
do for her, and conduct towards her in all respects according to the 
rules of the marriage covenant so long as it shall please God to con- 
tinue us both in this life,' — and then let go her right hand, when the 
said Nancy Neale immediately took the said Henry Mangue by his 
right hand, and voluntarily said, (repeating the words before used, 
mutatis mutandis,) of which proceedings as aforesaid, the said Henry 
Mangue and Nancy Neale required of me, the said justice, to make 
record, and called upon one S. N. and B. S. then present to bear 
witness to the whole of their proceedings. — Before me, J. B. justice 
of the peace." This instrument was also attested by the witnesses 
named. It appeared, further, that each party signed, and left in 
the hands of the justice a writing, by which they acknowledged the 
transaction recited in the certificate to have taken place. The court 
refused to regard this as a valid marriage. Thacher, J.: "Here is 
no evidence of a marriage — no such evidence as is known in law; — ■■ 
the parties agreed to come together, and they may now agree to 
separate." Sewall, J.: "It is apparent, from the certificate which 
has been shown to the court, that the justice did not act officially — 



i Yates v. Houston, 3 Texas, 433. 

2 2 Dane, 291. 3 Mangue v. Mangue, 1 Mass. 240. 



CH. IV.J MARRIA&E IN THE UNITED STATES. 85 

he has not certified that the parties were legally joined in marriage 
by him — he was merely a private witness of the transaction like the 
rest of the witnesses present. I do not undertake to say that this 
was not a marriage as to civil purposes, nor how it might operate as 
to civil contracts, but as to the case before the court there must have 
been such a marriage as is pointed out by the acts of the legislature, 
(statute 1785, c. 69,) for such only are we authorized to dissolve." 
Sedgwick, J. : "I have no doubts upon the question before the court. 
But I intentionally avoid giving any opinion as to the effect of the 
transactions as relative to civil contracts — nor will I say what effect 
they would have in exculpation of the parties upon prosecutions 
against them for lewdness, cohabitation, adultery, &c. This court 
is authorized to dissolve marriages for the cause alleged in the libel 
— but they must be such marriages as the law considers to be, to all 
intents and purposes, legal marriages. Whether, therefore, there 
has or has not been what the law might, to certain purposes, con- 
sider as a marriage in fact, I am clear that there is not evidence of 
such a marriage as the act of the legislature considers as a marriage 
to all intents and purposes legal, and of such, only, can we take 
notice." 

20. In Milford v. Worcester, 1 also, it was held that under their 
statute the intervention of a justice of the peace or an ordained min- 
ister was essential to a valid marriage. The marriage declared null 
by the court in that case was a contract de prsesenti, mutually en- 
tered into by the parties in the presence of a justice of the peace and 
of sundry witnesses after the officer had refused to assist in the cere- 
monial, and on the faith of which the contracting parties had cohab- 
ited as husband and wife for many years, and had reared a family of 
children. "No person," said the court, in announcing their judg- 
ment, "can lawfully solemnize marriages but a justice of the peace, 
or an ordained minister. A marriage merely the effect of a mutual 
engagement between the parties, or solemnized by any one not a 
justice of the peace or an ordained minister, is not a legal marriage, 
• entitled to the incidents of a marriage duly solemnized. The woman, 
when a widow, can not claim dower, nor the issue seizin by descent." 
This decision, pronounced in 1810, appears to stand unquestioned in 
Massachusetts to the present day. 2 



1 Milford v. Worcester, 7 Mass. 48. 

3 See, also, the case against Norcross, 9 Mass. 492. 



86 THE LAW OF DOWER. [CH. IV. 

21. Maine. — In Maine, likewise, the validity of marriages de prse- 
senti is denied by the courts. In Brunswick v. Litchfield, 1 it was 
held that a marriage solemnized by a minister of an unincorporated 
church or society of Free-will Baptists, licensed and ordained accord- 
ing to the rules of that communion, and claiming and exercising the 
right to join persons in marriage, was void. It was shown that the 
parties were competent to contract marriage ; that their intentions 
of marriage had been duly entered and published, and that they were 
members of the society above mentioned. The decision was placed 
upon the ground that the party officiating was not authorized by the 
laws of the State to solemnize marriages, and the court cited and 
relied upon the case referred to in the preceding section, of Milford 
v. Worcester. 

22. Ligonia v. Buxton 2 is to the same effect. In that case the 
marriage had been solemnized by a minister ordained over an unin- 
corporated religious society composed of members belonging to dif- 
ferent towns, and the marriage was held void — 1. Because he was 
not a stated and ordained minister of the Gospel within the meaning 
of the statute in force at the time. 2. Because the marriage was 
solemnized at the house of the minister, neither of the parties resid- 
ing in that town at the time, which was contrary to the directions of 
the statute. 

23. In Cram v. Burnham, 3 a marriage had been entered into 
while the husband had a former wife living, of which fact the second 
wife was cognizant at the time. They cohabited together many years, 
during which period the wife of the first marriage deceased. After 
her death the husband and second wife continued to reside together 
as before until the death of the latter. The court held that the par- 
ties were not to be regarded as husband and wife. The case of Fen- 
ton v. Reed 4 was cited in the argument, and adverted to by the court, 
but it was distinguished from the one at bar upon the ground that in 
the former the connection was innocent in its inception, and under 
all the circumstances, a second marriage, subsequent to the death of 
the first husband, might fairly be presumed ; while in the latter no 
such presumption could arise. But the doctrine broadly laid down 
in Fenton v. Reed was questioned by the court. "The court in New 

1 Brunswick v. Litchfield, 2 Greenl. 32. 

2 Ligonia v. Buxton, 2 Greenl. 102. 

3 Cram v. Burnham, 5 Greenl. 213. 

4 Fenton v. Reed, 4 John. 52 ; ante, \ 3. 



CH. IV.] MARRIAGE IN THE UNITED STATES. 87 

York," they observed, "say that a contract of marriage made per 
verba deprsesenti, amounts to an actual marriage, without any formal 
solemnization* They cite the case of M'Adam v. Walker, 1 Dow. 
148, which was an appeal from the Court of Sessions in Scotland, 
where Lord Eldon states the law in the same manner, which he says 
is warranted by the law of Scotland and by the canon law. It might 
deserve great consideration whether a doctrine thus broad would be 
sanctioned in this State." 

24. Damon's case 1 was a prosecution for bigamy. The court held 
that in order to sustain the indictment "there must be evidence of a 
marriage in fact, by a person legally authorized, and between per- 
sons legally competent to contract." And in The State v. Hodg- 
skins 2 the court adhered, in very positive terms, to the same rule. 
It was proven by witnesses who were present at the time, that a 
marriage contract had been solemnly entered into ; that the cere- 
mony was performed by an individual assuming to have legal author- 
ity to act, and that the contracting parties had resided together many 
years, and were the parents of a large family of children, issue of the 
marriage. But the court held this evidence insufficient, and required 
proof that the person who performed the ceremony was clothed with 
the requisite authority for that purpose, thus negativing in the strong- 
est manner the idea that a marriage per verba de prsesenti is good in 
that State. 

25. New Hampshire. — The opinion of the Superior Court of Judi- 
cature of New Hampshire, in the case of Londonderry v. Chester, 3 is 
one of the most complete and thorough expositions of the marriage 
law to be found in the American reports. The particular point aris- 
ing in the case was whether the clergyman who performed the mar- 
riage ceremony there drawn in question, was an ordained minister 
qualified to solemnize marriages, within the act of 1791; but the 
consideration of this question led to the discussion by the court of 
the whole subject of the marriage contract. "Both Bracton, b. 1, 
ch. 5, and Plowden, 445," said the judge who delivered the opinion, 
"agree that the institution of marriage is derived from the law of 
nations, and that marriages may be formed by mutual agreement ; 
fit per mutuant utriwsque voluntatem quse matrimonium appellatur. 



1 Damon's case, 6 Greenl. 148. 

2 The State v. Hodgskins, 19 Maine R. 155. 

3 Londonderry v. Chester, 2 N. H. 268. 



88 THE LAW OP DOWER. [CH. IV. 

It is a mere civil contract. The form of the contract of 

marriage, as a mere civil transaction, is well enough established. 
Thus, if it be per verba in futuro, the contract is executory ; and if 
not afterwards executed, an action lies for damages alone. Though 
formerly this kind of contract was specifically enforced by the eccle- 
siastical court, and its existence was considered a good cause of 
divorce. But if the contract be per verba de prsesenti, the marriage 
is complete, and if the parties, being in other respects competent to 
contract, and not being influenced by fraud or force, employ such 
words, they become, by the operation of the contract alone, husband 
and wife, and are liable to the duties of their new relation." 

26. In Clark v. Clark, 1 the court, to some extent, indorsed this 
view of the law, citing with apparent approval the case of London- 
derry v. Chester ; but in Dunbarton v. Franklin, 2 determined as late 
as 1848, the court indicate a strong disposition to adopt an entirely 
different rule, rejecting the conclusions of Judge Woodbury as stated 
in 2d New Hampshire, so far as they recognize the validity of con- 
tracts de prsesenti, and substantially following \he lead of the court 
in 7th Massachusetts. There was no evidence of an actual formal 
solemnization of the marriage, but there was testimony that the par- 
ties had lived together for many years, acknowledging each other as 
husband and wife, and were generally reputed to be married ; there 
was proof, also, that they had entered into a private contract of mar- 
riage, and lived together in accordance with that contract. The 
court held distinctly and explicitly that while this evidence was suf- 
ficient to justify a jury in presuming that a marriage in fact had 
taken place in accordance with the prescribed formalities of the law, 
yet that it was error in the court below to instruct the jury that a 
contract of marriage entered into by the parties themselves, followed 
by cohabitation, was sufficient per se to constitute a valid marriage. 
The remarks of Mr. Justice Woodbury, in the case of Londonderry 
v. Chester, it was said, although relevant to the general question, 
were not called for by the particular matter to be decided by the 
court. And the court further added, in conclusion : " We imagine 
that it has never been understood in this State that cohabitation 
without more, in pursuance of a contract of marriage, constitutes a 
marriage. Such a doctrine would be productive of the worst conse- 



1 Clark v. Clark, 10 N. H. 380. 

2 Dunbarton v. Franklin, 19 N. H. 257. 



CH. IV.J MARRIAGE IN THE UNITED STATES. 89 

quences to the peace and morals of society. Undoubtedly, where 
there is- proof of a contract of marriage, and cohabitation in pursu- 
ance of it, the jury may believe that the parties were actually mar- 
ried ; but the marriage is a fact to be found by the jury, and the 
other circumstances are competent evidence for their consideration, 
but they do not of themselves constitute a marriage, as must be the 
case if from such evidence the jury are bound to find that the parties 
are actually married." 

27. In Keyes v. Keyes, 1 which was a proceeding to obtain a decree 
of nullity of marriage on the ground of the alleged insanity of one 
of the parties at the time it was entered into, the court remarked 
that " in modern times the contract of marriage has been very gen- 
erally and very properly regarded as a civil contract requiring the 
assent of the parties ;" but nothing was said impugning in the least 
degree the decision in Dunbarton v. Franklin. No case is found in 
the New Hampshire Reports indicating a departure from the rule 
as applied in the last-mentioned case ; and inasmuch as the case of 
Londonderry v. Chester did not present directly for adjudication the 
question of the validity of marriages de prsesenti, and that question 
fairly and necessarily arose in Dunbarton v. Franklin, and was de- 
termined adversely to their sufficiency, it would seem that, in New 
Hampshire, marriages not solemnized by the proper authority are 
to be treated as ineffectual to confer the civil rights or to create the 
liabilities attaching to the regular marriage. 

2-8. Tennessee. — In Bashaw v. The State, 2 which was a prosecu- 
tion for bigamy, it was held that to constitute a valid marriage under 
the laws of Tennessee, two things are essentially necessary : 1. A 
proper and lawful authority to solemnize the marriage. 2. A per- 
formance of the marriage ceremony by a person duly qualified by 
the acts of Assembly. A marriage solemnized in one county by a 
justice of the peace of another county, though formal and legal in 
other respects, was pronounced invalid. In a subsequent case the 
same doctrine was affirmed. On a presentment for open and noto- 
rious lewdness, it was held to be no defence that the parties had ver- 
bally contracted marriage, and lived together as husband and wife 
according to the common law. Upon this point the language of the 
court was clear and emphatic. "The contract of marriage," they 
said, " is a civil contract, dependent respectively upon the law of 

1 Keyes v. Keyes, 2 Foster's N. H. Rep. 553. 

2 Bashaw v. The State, 1 Yerg. 177. 



90 THE LAW OP DOWER. [CH. IV. 

each and every country or sovereignty ; and its constitution directed 
and controlled by the municipal regulations of such country or sove- 
reignty prescribing its rites and forms of solemnization. The com- 
mon law form of solemnization by verbal contract expressing the 
assent of the mind, and living together, which is presumed by the 
argument to have been brought by our ancestors along with them 
upon their emigration from England, and forming originally a part 
of their colonization code of law, can not now be considered as being 
of any force and validity after the colonial government took up the 
subject of the marriage contract and legislated upon it, making en- 
actments, and prescribing rules and regulations for its solemnization 
altogether inconsistent with and repugnant to the common law in 
this respect. Accordingly, since the year 1741, at the least, the 
common law mode of constituting a legal marriage is of no validity 
here." 1 

29. Vermont. — The Supreme Court of this State, in a very early 
case, went to the full extent of sustaining marriages per verba de 
prsesenti. 2 Certain parties, resident in Vermont, had gone into 
Lower Canada, and on the 7th day of September, 1807, before a 
justice of the peace of the Province, covenanted and agreed with 
each other to be husband and wife. No clergyman was present, and 
the justice of the peace took no part in the ceremony except to make 
a memorandum of the facts as they occurred, he not being authorized 
by law to solemnize marriages. No other ceremony of marriage was 
had between them at any time, but they continued to cohabit as hus- 
band and wife, and there were several children, issue of the marriage. 
Unless, therefore, the marriage was good as a contract per verba de 
prsesenti, it was of no validity whatever. After full consideration of 
the question and examination of the authorities, the court sustained 
the marriage. In the course of their opinion the court said : " It 
has been contended by the appellees, that the proceeding before the 
justice of the peace in the Province did constitute a marriage per 
verba de prsesenti between Harriman and Lydia Page. Of that 
there is little doubt. It was declared by C. J. Holt, in Jesson v. 
Collins, 2 Salk. 437, that a contract per verba de prsesenti was a 
marriage, namely, I marry you — you and I are man and wife. And, 
again, he holds similar language in Wigmore's case, p. 438. And 
in Fenton v. Reed it was determined that a contract of marriage 
made per verba de prsesenti amounts to an actual marriage, and is 

i Grisham v. The State, 2 Yerg. 589. 2 2 Verm. R. 151. 



CH. IV.] MARRIAGE IN THE UNITED STATES. 91 

as valid as if made in facie ecclesise. And, in Reed v. Posser, Lord 
Kenyon says, ' that an agreement of marriage between the parties, 
per verba de prsesenti, was ipsum matrimonium.' And as neither 
our statute, nor that of the 26 Geo. II., 1 declares marriages void 
which are not consummated according to the provisions of them, no 
sound reason can be offered why the covenants and agreements of 
marriage between Harriman and Lydia Page, entered into before the 
justice, per verba de prsesenti, followed by cohabitation uninterrupted 
to the time of the order of removal, should not be valid to every in- 
tent as though made before the altar, especially as it is viewed both 
in this State and in England in no other light than as a civil con- 
tract." 2 

30. In the more recent case of Northfield v. Plymouth, 3 however, 
the court entertained serious doubts of the correctness of the doctrine 
above enunciated, and Redfield, J., who delivered the opinion, re- 
garded it as directly in conflict with a proper construction of their stat- 
utes upon the subject. A marriage de prsesenti had been contracted 
at a time when the woman had a former husband living. The parties, 
with full knowledge that the first husband was living, had continued 
their connection until after his decease, and down to the date of the 
death of the second husband. The court pronounced against the prop- 
osition sought to be established, that after the death of the first hus- 
band a new contract de prsesenti was to be presumed, and adopted, 
substantially, the views of the Maine court in Cram v. Burnham.* 
In respect to the New York case of Fenton v. Reed, the judge deliv- 
ering the opinion, after remarking that in that case stress was laid 
upon the fact " that a marriage per verba de prsesenti is valid in 
that State, and also at common law, if followed by cohabitation," 
added : " This, I think, could hardly be regarded as law in this 
State without virtually repealing our statute upon that subject. It 
certainly has never been so regarded under the English statute of 
26 Geo. II. and 4 Geo. IV. ch. 76 ; and I see no reason why it should 
be here, when it is clearly a dispensation with all the requisitions of 
the statute upon the subject." It will be seen that in these remarks 
the learned judge simply expresses his individual convictions upon 
the question, without assuming to decide it, for the reason, no doubt, 

1 The learned judge was certainly in error as to the provisions of the statute of 
Geo. II. 

2 Newbury v. Brunswick, 2 Verm. 151 ; see, also, The State v. Rood, 12 Verm. 396. 
» Northfield v. Plymouth, 20 Verm. 582. 

4 Cram v. Burnham, 5 Grcenl. 213 ; ante, (S 33. 



92 THE LAW OF DOWER. [CH. IV. 

that its determination was not called for in the case ; but in view of 
the opinion thus deliberately expressed by one of the leading jurists 
of the State, it may well be doubted whether marriages de prsesenti 
will be sustained, when the question shall hereafter be presented to 
the courts of Vermont for express adjudication. 

81. Mississippi. — No case involving the direct question of the 
requisites of a valid marriage has been determined in Mississippi ; 
but the language of the court, in the case of Stevenson v. McReary, 1 
appears to be against the sufficiency of marriages entered into by 
private contract. "The last charge refused," they say, "is, that 
cohabitation and acknowledgment are legal evidence of marriage, 
and if the jury believe from the evidence that Stephen and Mary 
Stevenson cohabited and held themselves out as husband and -wife, 
and raised and provided for a large family of children, which they 
acknowledged and held out to the world as their children, they must 
find for the plaintiffs. This was asking the court to weigh the evi- 
dence. The court might have charged the jury, as it afterwards 
did, that such circumstances would justify them in presuming a mar- 
riage, but such circumstances could not, under, all circumstances, 
justify a verdict for the plaintiff." 

32. North Carolina. — In North Carolina, in the case of The State 
v. Samuel, 2 the court pronounced against the validity of marriages 
entered into by private contract merely. "We do not agree," they 
said, "that persons sui juris are legally married merely in virtue of 
their own consent, however explicitly expressed in terms of imme- 
diate agreement, unless it be so expressed in presence of those per- 
sons who are designated by law to be witnesses thereto. It is un- 
necessary to state at large the reasons on which our opinion on this 
point rests ; because no person can reflect on the subject without 
perceiving that such should be the law, nor read our statutes without 
likewise perceiving that such is intended by the legislature to be 
the law." 

The Rule in the Supreme Court of the United States. 

33. The case of Jewell v. Jewell, 3 brought into the Supreme Court 
of the United States, upon a writ of error to the Circuit Court of 
South Carolina, among others, presented the question whether mar- 
riages per verba de prsesenti and per verba de futuro cum copula 

1 Stevenson v. McReary, 12 S. & M. 9. 

2 The State v. Samuel, 2 Dev. & Bat. L. Rep. 177, 180. 
» Jewell v. Jewell, 1 How. U. S. 219. 



CH. IV.] MAKRIAGE IN THE UNITED STATES. 93 

are good. The Circuit Court had held that both these classes of mar- 
riage are valid, and equally binding (the parties being competent as 
to age and consent) as if made in facie ecelesiw. Upon this point 
the judges of the Supreme Court were equally divided, and conse- 
quently no opinion in relation to it was expressed by either of them. 
34. The case of Hallett v. Collins, 1 appealed to the Supreme 
Court, from the Circuit Court of the United States for the Southern 
District of Alabama, also involved this question. The statement of 
the case shows that Joseph Collins resided in the country south of 
the thirty-first degree of north latitude, between the Iberville and 
Perdido, and died there about the year 1811 or 1812, while that 
country was still in the actual possession of the Spanish government. 
In the year 1805 he resided in Pascagoula. Elizabeth Wilson re- 
sided in the same place, and in the family of Dr. White, who was a 
syndic or chief public officer in that place. A contract of marriage 
was entered into by Joseph Collins and Elizabeth Wilson before Dr. 
White, who performed the marriage ceremony. The parties con- 
tinued to live together as husband and wife till the death of Collins. 
A question was made whether the marriage, having been contracted 
in a Spanish colony, in the presence of a civil magistrate, without 
the sanction of a priest, was a valid marriage. The Supreme Court,, 
in their opinion in this case, declared it to be an established principle 
of the civil and canon law, antecedent to the Council of Trent, that a 
marriage might be validly contracted by mutual promises alone, or 
what were called sponmlia de prsesenti, without the presence or 
benediction of a priest; that the decree of the Council of Trent, 
though adopted by the king of Spain in his European dominions, 
was not extended to the Spanish colonies, and that the marriage, 
therefore, was sufficient in law. 2 The court remarked that it had, 
of late years, been disputed in England, whether a marriage de prse- 
senti, previous to the Marriage Act, was sufficient by the common 
law, adding, however, that it had never been doubted here ; an ob- 
servation, it would seem, in view of the equal division of the same 
court upon the identical question, in the case referred to in the pre- 
ceding section, which should be taken with some degree of quali- 
fication. 

i Hallett v. Collins, 10 How. U. S. 174. 

2 See the views of the Supreme Court of Pennsylvania, sustaining a marriage 
celebrated before a justice of thB peace, in a portion of the territory of Mississippi, 
while under the de facto government of Spain. Phillips v. Gregg, 10 Watts R. 158. 
See, also, ante, \ 13. 



CHAPTEK V. 

OF MARRIAGE PER VERBA DE FUTURO CUM COPULA. 



§ 1, 2. Distinction between marriage 
per verba de preesenti and per verba de 
futuro cum copula. 



I 3-6. The doctrine in the United 
States. 
7. Concluding observations. 



1, In the case of a marriage per verba de prsesenti, the parties 
are understood to deliberately accept the relation of husband and 
■wife from the time of the contract ; but a promise per verba de futuro 
looks to the future acts of the parties for its completion, and the 
marriage which it contemplates may never take place. 1 But where 
copula ensues upon the promise, and there are no circumstances to 
disconnect the cohabitation from the previous mutual engagement, 
the present consent essential to matrimony, according to some of the 
authorities, is supposed to be exchanged between the parties at the 
moment of the intercourse, and the marriage thus contracted and 
consummated is considered equivalent, in legal effect, to a contract 
per verba de preesenti. 2 The legal presumption thus made, though 
but slightly founded in nature or reality, is held to be abundantly 
recommended by its equity, and the just check which it imposes upon 
perfidy. 3 

2. The text-books, both English and American, lay down the rule 
as stated in the preceding section. And notwithstanding the many 
points of difference discussed in The Queen v. Millis, 4 it was agreed 
on all sides that espousals per verba de futuro cum copula have pre- 
cisely the effect of espousals per verba de preesenti, the point in con- 
troversy being as to the true legal effect of marriages of the latter 
class. And Mr. Jacob, who has labored with more zeal, perhaps, 



i Shelf. Mar. and Div. 28. 

2 Macq. H. & W. 5, 6 ; Shelf. Mar. and Diy. 26 ; Reid v. Laing, 1 Shaw Ap. Cas. 440 ; 
Stewart v. Menzies, 2 Rob. Ap. Cas. 547, 591 ; Lord Stowell, in Dalrymple v. Dal- 
rymple, 2 Hag. Con. R. 66, 67; 4 Eng. Ec. 490-1; 1 Fras. Dom. Rel. 188. 

3 Macq. H. & W. 6. 

i The Queen v. Millis, 10 Clark & Fin. 534 ; ante, ch. 3, \ 15. 
(94) 



CH. V.] MARRIAGE PER VERBA DE FUTURO CUM COPULA. 95 

than any other writer in maintenance of the proposition that con- 
tracts de prsesenti do not constitute complete marriage, admits that 
* contracts per verba de futuro, when followed by carnal intercourse, 
are to be regarded as possessing the same legal efficacy as the former. 1 
In Scotland the rule appears well established, not only upon the 
authority of text writers, but by express adjudication. 2 It should 
be noticed, however, that the law of Scotland upon this subject pos- 
sesses one peculiarity, not found in the common law of England, 
designed for the protection of the male sex against the arts of de- 
signing and unscrupulous females. In all this class of cases, the 
contract or promise of marriage alleged to have been made anterior 
to the copula, must, by the Scottish law, be proved by the oath or 
written statement of the man, parol proof from other sources being 
rejected as inadmissible. 3 

3. In the United States the views of the text writers are marked 
with the same unanimity observable in England. Chancellor Kent 
states it as a clear and apparently undeniable proposition, that a prom- 
ise of future marriage, given and accepted, if entered into by parties 
competent thereto, followed by copula, in the absence of all civil regu- 
lations to the contrary, makes a good marriage. 4 The text of Green- 
leaf, Bouvier, and Bishop is to the same effect. 5 At the same time 
it is worthy of note that no case is to be found, English or American, 
in which such a marriage was held good, where the direct question 
was presented for adjudication. The doctrine is distinctly recog- 
nized by Chief Justice Holt in Wigmore's case, 6 by Cowen, J., in 
Starr v. Peck, 7 and by Chief Justice Boyle in Dumaresly v. Fishly; 8 
but in all these cases this expression of opinion is mere obiter dicta, 
the facts in the respective cases not calling for a decision upon this 
point. 

4. While, as was just observed, no adjudged case is to be found 
expressly holding a marriage per verba de futuro cum copula valid 

1 App. No. 1, Roper, H. & W. 447-8; 2 Bright, H. & W. 370-2. 

2 Halkerston's Dig. Marriage Law of Scotland, 455 et seq. 
» Ibid. 456 ; Bankton, lib. 4, tit. 5, \ 3. 

4 2 Com. 87, and note. 

6 2 Greenl. Ev. % 460; 1 Bouvier's Inst. 110; Bishop, Mar. and Div. \\ 90, 91. And 
see Reeve's Dom. Rel. 196, note. 

6 Wigmore's case, 2 Salk. 438. 

* Starr v. Peck, 1 Hill, 270. 

8 Dumaresly v. Fishly, 3 A. K. Marsh. 369. The same remarks are applicable to 
the cases cited from the Ecclesiastical Reports, ante, \ 1, note 2. 



96 THE LAW OF DOWER. [CH. V. 

in law, it is to be remarked that in two cases recently arising in the 
United States, the doctrine has been very distinctly and emphatic- 
ally repudiated. In the first of these, determined by the New York ' 
Court of Appeals in 1857, that court, without a dissenting voice, 
held a marriage of the character now under consideration utterly 
invalid, and a daughter, the issue of such supposed marriage, illegiti- 
mate, notwithstanding the fact that the parties, subsequently to the 
birth of such daughter, had formally solemnized their marriage con- 
tract in accordance with existing statutory requirements, and recog- 
nized her as their offspring, bringing her up and providing for her, 
precisely as if born in ordinary wedlock. No allusion was made by 
the court to The Queen v. Millis, but they referred in terms of appro- 
bation to the views of Mr. Jacob in his Addenda to Roper on Hus- 
band and Wife, 1 and expressed a willingness to adopt his conclusions 
as to the effect of irregular marriages in England prior to the adop- 
tion of the Marriage Act. At the same time they were careful to 
limit their decision to the facts in the case before them, and to state 
distinctly that while they pronounced against the validity of mar- 
riages per verba de futuro cum copula, they regarded the sufficiency 
of marriages per verba de preesenti as too firmly established by judi- 
cial decisions in that State, to be called in question. 2 

5. In Duncan v. Duncan, 3 decided in 1859, the Supreme Court of 
Ohio followed the ruling in Cheney v. Arnold, although in its facts 
it differed materially from the latter case. It was a proceeding for 
dower. The petitioner, without any attempt at the forms of mar- 
riage, had taken up her residence with the person whose widow she 
afterwards claimed to be, and cohabited with him, with full knowl- 
edge that he had a wife then living, but with the understanding that 
as soon as he could procure a divorce he would marry her. He, how- 
ever, introduced and spoke of the petitioner as his wife, and she 
passed among the neighbors as such. No divorce was ever obtained ; 
but after the parties had maintained, for several years, this adulter- 
ous connection, news came of the death of the lawful wife, and there- 
upon the husband renewed to the petitioner his promise that he would 
marry her, but no actual marriage, in any form, was ever celebrated 
between them, and they continued to cohabit as before until he died. 



i 2 Roper, H. & W. 445 ; 2 Bright, H. & W. 369 ; ante, oh. 3, g 14. 

2 Cheney v. Arnold, 15 N. Y. (1 Smith,) 345. 

3 Duncan v. Duncan, 10 Ohio St. 181. 



CH. V.] MARRIAGE PER VERBA DE FUTURO CUM COPULA. 97 

The court, upon this state of facts, held that the petitioner was not 
the widow of the deceased, and declared, as a rule of law in Ohio, 
that "mutual promises to marry in the future, though made between 
parties competent to contract, and followed by cohabitation as hus- 
band and wife, is not, in itself, a valid marriage." 

6. There can be no doubt as to the correctness of the judgment of 
the court in this case overruling the claim of the petitioner, for it is 
manifest that the facts, instead of making out a marriage contract 
per verba de futuro cum copula, as recognized by the leading au- 
thorities supporting such marriages, established precisely the con- 
trary. The connection relied on to make out the marriage was 
confessedly meretricious in its inception. The parties, in defiance 
of every principle of decency, and in open violation of the kw, were 
living notoriously in a state of adultery, for which they were liable 
to be indicted and punished under the criminal laws of the State. 
The law writers, and those judges who claim for a contract of future 
marriage, followed by cohabitation, the sanctity of the marriage rela- 
tion, are generally careful to place their claim upon such grounds as 
would effectually exclude a connection of the character proven in the 
above case from any of the rights or incidents of actual marriage. 
The cohabitation, says Chancellor Kent, must be without any cir- 
cumstances to disconnect the mutual promise from the cohabitation ; 
there must be no previous illicit connection, and marriage must be 
really intended by the parties. 1 Lord Campbell's observations are 
to the same effect: "If the woman, in surrendering her person, is 
conscious that she is committing an act of fornication, instead of con- 
summating her marriage, the copula can not be connected with any 
previous promise that has been made, and marriage is not thereby 
constituted." 2 The presumption of the interchange of consent to 
present marriage at the moment of the copula, is a presumption of 
evidence merely, and, like other presumptions of that character, may 
be rebutted by the facts and circumstances of the particular case. 3 
In Cunningham v. Cunningham, 4 Lord Eldon and Lord Redesdale 
held that in cases of cohabitation the presumption was in favor of its 
legality ; but where it was known to have been illicit in its origin, 



i 2 Com. 8th ed. 87, note d. 

a In The Queen v. Millis, 10 Clark & Fin. 534, 782. 
3 Bishop, Mar. and Div. \ 93. 
* Cunningham v. Cunningham, 2 Dow. 482. 
VOL. I. 1 



98 THE LAW OF DOWER. [CH. V. 

that presumption could not be made. 1 This language, it is true, had 
reference, more particularly, to cases where the inception of the con- 
nection is known to be unlawful, and there is no evidence of a mar- 
riage contract in any form, rather than to cases where, during the 
connection, there has been an express promise of future marriage, 
attended by a continuance of the intercourse. Nevertheless, in prin- 
ciple, it would seem to be fairly applicable to cases of the latter 
class ; for where a' woman voluntarily yields her person to the em- 
braces of an adulterer, with full knowledge of the guilty nature of 
the act, a promise of future marriage would hardly justify the pre- 
sumption that subsequent cohabitation was referable to such promise, 
and intended as a consummation of the contract. The circumstances 
would appear to repel rather than create such a presumption. In 
Scotland, however, the rule is otherwise held, and it has there been 
determined that, notwithstanding the parties were living in fornica- 
tion before the promise of future marriage, the presumption is that 
after such promise the woman refused to continue the connection 
unless put upon an honorable footing. 2 

7. In the course of the discussion of the subject of the marital 
contract, we have seen that an attempt to ascertain and state with 
precision the rule of the ancient common law with regard to its essen- 
tial requisites, is attended with great if not insuperable difficulties. 
The English authorities have been and continue to be conflicting. 
The court of last resort of that country was equally divided upon the 
question. In the United States, while there is no difference among 
the text writers, there is a direct conflict in the views of the judges 
of some of the sister States. The decided cases preponderate but 
slightly in favor of the validity of private contracts of marriage. In 
many States no decision upon the question has yet been made. In 
no case directly presenting the question, has a marriage contract 
per verba de futuro, followed by copula, been held good ; while the 
courts of two of the principal States have decided against the validity 
of such marriages. The views and arguments of the text writers 
who maintain the legality of both these descriptions of marriage con- 
tract, are entitled to great weight, not only on account of the deserv- 



1 See note, Fenton v. Reed, 4 John. 52. 

2 Sim'!). Miles, 8 Scotch Sess. Caa. 89, 97; 1 FraB. Dom. Rel. 195; Bishop, Mar. 
and Div. \ 95. See the strictures of Mr. Bishop on the case of Cheney v. Arnold, 
Bishop, Mar. and Div. § 91, a. and note to that section. 



CH. V.] MARRIAGE PER VERBA DE FUTURO CUM COPULA. 99 

edly high legal reputation of the writers themselves, but because, 
also, their conclusions are founded upon careful investigation and 
mature consideration of the subject. And while the mind is inclined 
to yield assent to the force of their reasoning, and to concur with 
them in the conclusion that, like any other contract, the marriage 
engagement, in its essence, requires nothing more than the mutual 
consent of competent parties to make it perfect and complete, still it 
must be admitted that this doctrine is far from being satisfactorily 
established by the adjudged cases, as a general rule of Amer- 
ican law. And it may be safely assumed that, in many of the 
States at least, it will remain an open question for a series of years 
to come. 



CHAPTER VI. 



WHETHER THE IRREGULAR MARRIAGE CONFERS A RIGHT OF 

DOWER. 



\ 1. Introductory. 

2-4. Doctrine of the ancient text- 
books. 

5,6. Tendency of the modern English 
authorities. 

7. Views of American text writers. 



I 8. Analysis of the authorities. 
9, 10. Incidents of the irregular mar- 
riage in England. 

11, 12. Inapplicability of the English 
doctrine in the United States. 



1. It might be reasonably supposed that a correct solution of the 
question respecting the validity of irregular marriages at common 
law, would necessarily determine the further question whether such 
marriages are sufficient to confer a- right of dower. For if they be 



aplation 



ents of. 



it 



fail 



of law, it would seem to fol- 

arriage, including the right 

is result does not necessarily 

f we assume the validity of 

hed, we shall find that the 

law, they entitle the wife 



perfect and complete in con 

low that all the rights and 

of dower, would attach t' 

follow ; and, strange as 

this class of marriages to be 

question yet remains whether, at com 

to dower. 

2. The old text writers appear to^agree that formal solemnization 
of the marriage was necessary to create, on behalf of the wife, the 
right to this estate. Thus, Swinburne lays down the rule that spou- 
sals de prsesenti, without solemnization, do not, according to the law 
of England, render the issue legitimate, nor give to the wife the 
right of dower, nor to the husband the right of property in the wife's 
goods, nor of administering upon her estate. 1 The same doctrine is 
stated by Ayliffe, 2 and also by Perkins. 3 And in Fitzherbert's Na- 
tura Brevium this case is given : " A woman married in a chamber 
shall not have dower by the common law. 16 H. 3. Quaere of mar- 
riages made in chapels not consecrated, &c, for many are by license 



i Swinb. on Spousals, 2, 15, 234, 235. 

8 Perk. sec. 194, 195, 306. 
(100) 



2 Ayliffe's Par. 245. 



CH. VI.] INCIDENTS OF THE IRREGULAR MARRIAGE. 101 

of the bishop married in chapels. And it seemeth reasonable^ that 
in such case she shall have dower." 1 

3. In Lord Hale's MSS. we find this case stated: 2 "A. contracts 
per verba de prsesenti with B., and has issue by her, and afterwards 
marries C. in facie ecelesise. B. recovers A. for her husband by 
sentence of the ordinary, and for not performing the sentence he is 
excommunicated, and afterwards enfeoffs D., and then marries B. in 
facie ecelesise, and dies. She brings dower against D. and recovers, 
because the feoffment was per fraudem rtiediate between the sentence 
and the solemn marriage." But Lord Hale adds that this recovery 
was reversed coram rege et concilio, for the reason that neither the 
contract nor the sentence was a marriage, and therefore the husband 
had no seizin during his marriage with the demandant. 

4. In Bacon's Abridgment 3 the same general doctrine is stated in 
the following terms : " In order to make the marriage complete, so 
as to entitle the wife to dower, the issue to inherit, &c, the same 
must be celebrated in facie ecelesise ; and therefore the private con- 
tract, without the priest's blessing, makes no marriage ; though such 
contract may be enforced in the spiritual court." Blackstone, se- 
lecting his words with great circumspection, says: 4 "Any contract 
made per verba de prsesenti, or in words of the present tense, and in 
case of cohabitation per verba defuturo, also, between persons able 
to contract, was, before the late act, deemed a valid marriage to 
many purposes, and the parties might be compelled, in the spiritual 
courts, to celebrate it in facie ecelesise." But for what purposes it 
was deemed valid, and for what invalid, he expresses no opinion, 
leaving us to infer, however, that such a marriage was not considered 
sufficient to clothe the parties with all the rights belonging to the 
perfect and complete marriage contract. 

5. The more modern English text writers refer, with but little in 
the way of explanation or comment, to this condition of the common 
law as laid down in the ancient authorities. Thus, Mr. Shelford 
says : 5 "The common law had scruples in applying the civil rights of 
dower, and community of goods, and legitimacy, in cases of mere 
contracts of marriage, unaccompanied by celebration in the face of 
the church The text writers upon this subject agree in the 



i Fitzh. N. B. 150, N. 2 Co. Litt. 33 a. note 10. 

» 4 Bac. Ab. 531, tit. Mar. and Div., C. * 1 Com. 439. 

5 Shelf. Mar. and Div. 35, 36. 



102 THE LAW OF DOWER. [CH. VI. 

necessity of a solemnization to confer the civil rights of marriage." 
And Mr. Park, in his work on Dower, 1 observes : " But though es- 
pousals, or affiance, as it is sometimes termed, was thus the very 
substance of matrimony, and even by the temporal lawyers the terms 
affiance and marriage were often promiscuously used, yet it does not 
seem to have been allowed that espousals alone, unaccompanied by 
celebration, should confer the civil rights of dower, or legitimacy ; 
but to obtain these temporal advantages it was requisite that the 
contract of matrimony should be celebrated in the face of the 
church." 

6. We have already referred to the elaborate opinion of Lord 
Stowell, in Dalrymple v. Dalrymple, 2 as sustaining the validity of 
private marriages with great learning and ability. Yet even he re- 
marks that "the common law certainly had scruples in applying the 
civil rights of dower and community of goods, and legitimacy, in the 
cases of these looser species of marriage." And while the six law 
lords, who delivered opinions in the case of The Queen v. Millis, were 
equally divided as to the validity of this class of marriages, they all, 
except Lord Brougham, admit that a marriage not celebrated in the 
face of the church, whatever else it may have been good for, did not 
carry with it the incident of dower. The views of Mr. Jacob and 
Mr. Macqueen, to the same effect, have already been given at length. 3 

7. The American authorities reflect but little light upon this per- 
plexing phase of the question, the reports being, in a measure, bar- 
ren of cases involving its discussion. Nevertheless we find Chan- 
cellor Kent, while maintaining without hesitation or qualification the 
validity of private marriages at common law, noticing with scrupu- 
lous exactness the peculiarity now referred to. " It would seem," 
he says, " to have been a question under the ecclesiastical law, prior 
to the English statute of 26 Geo. II., whether a contract of mar- 
riage, though followed by cohabitation, was not essentially imperfect 
unless it was solemnized by the intervention of a priest. It would 
not entitle the wife to dower, (Perkins, sec. 194, 306,) nor entitle 
the husband to administer on his wife's estate; Haydon v. Grould, in 
the court of delegates, 1 Salk. Rep. 119. The intervention of a 
person in holy orders seems to have been assumed in the cases as a 

l Park, Dow. 8. 

'Dalrymple v. Dalrymple, 2 Hag. Con. R. 54, 68; ante", ch. 3, <S 12. 
» 2 Roper, H. & W. 474 ; 2 Bright, H. & W. 397 ; ante, ch. 3, \ 14 ; Maeq. H. & W. 
4, 5; ante, ch. 3, \ 16. 



CH. VI.] INCIDENTS OP THE IRREGULAR MARRIAGE. 103 

material circumstance ; The King v. The Inhabitants of Brampton, 
10 East. 282; Latour v. Teesdale, 8 Taunt. Rep. 830." 1 And an 
American writer upon the subject of dower states the rule with regard 
to marriage as follows : " The claimant, demanding dower, must be 
the actual wife of the person at the time of his decease. And the 
marriage must have been solemnized in the manner required by law, 
and between persons capable of contracting matrimony together." 2 
But whether it is intended by this language to express an opinion 
adverse to the validity of marriages not solemnized in accordance 
with statutory formalities, or merely as to the sufficiency of such 
marriages to entitle the wife to dower, does not very clearly appear. 

8. In no English case has it been held that the irregular marriage, 
or marriage by private contract, merely, confers the right of dower. 
In none of the cases in which an opinion was expressed by English 
judges in favor of the sufficiency of such marriages, was any ques- 
tion as to the right of dower involved. In the case stated by Lord 
Hale, the decision was directly against the claim of the alleged wife. 
Nor has any English writer ventured a decided opinion that these 
marriages are attended with this important incident of the perfect 
and complete marital contract. And in the United States not one 
of the cases maintaining the validity of contracts de prxsenti was 
founded on an application for dower. Jackson v. Claw, 3 and Don- 
nelly v. Donnelly, 4 were decided expressly upon the ground of a 
presumed actual solemnization of marriage. 

9. But the inquiry immediately and naturally arises — If a mar- 
riage by private contract fails to give the woman the right of a 
widow in respect to dower, and the man the right of a husband in 
respect to the woman's property, and does not render the issue legit- 
imate, nor impose upon the woman the disabilities of coverture," 
what incidents of the marriage relation can possibly attach thereto, 
and what is the nature of that connection which the parties are, by 
law, enabled to assume at will, and under cover of which cohabitation 
may be carried on for an indefinite period of time, but which, never- 
theless, brands the issue with the stain of illegitimacy? In England 
the question is thus answered: "At common law, a contract entered 
into by words of present consent was indissoluble. The parties could 

1 2 Com. 87, note a. 2 Lambert on Dower, 14. 

3 Jackson v. Claw; 18 John. 346; post, ch. 7, \ 11. 

* Donnelly v. Donnelly, 8 B. Mon. 113; ante, oh. 4, \ 16. 

s Macq. H. & W. 4 ; 2 Roper, H. & W. 474; 2 Bright, H. & W. 879. 



104 THE LAW OP DOWER. [CH. VI. 

not release each other from the obligation. Either party, too, might 
by a suit in the spiritual court compel the other to solemnize the 
marriage in facie ecelesise. It was so much a marriage, that if they 
cohabited together before solemnization, they could not be proceeded 
against for fornication, but merely for a contempt. If either of them 
cohabited with another person, the parties might be proceeded against 
for adultery. The contract, moreover, was considered to be of the 
very essence of matrimony, and was, therefore, and by reason of its 
indissoluble nature, styled in the ecclesiastical law verum matrimo- 
nium, and sometimes ipsum matrimonium. Another, and a most 
important effect of such a contract was, that if either of the parties 
afterwards married with another person, solemnizing such marriage 
in facie ecelesise, the same might be set aside, even after cohabitation 
and after the birth of children ; and the parties might be compelled 
to solemnize the first marriage in facie ecelesise." 1 

10. It would seem, therefore, according to this view, that where a 
private contract of marriage existed, though not solemnized in facie 
ecelesise, neither of the parties could release the other from its obli- 
gations, nor make a valid contract of marriage with a third person ; 
and either of them might compel the other, by proceedings in the 
spiritual courts, to solemnize the marriage according to the prescribed 
formalities of the ecclesiastical law. It would appear, further, that 
in withholding from such contract the ordinary incidents of marriage ; 
in refusing to recognize the legitimacy of the issue, the right to 
dower, and the usual rights of a husband in the estate of the wife ; and 
at the same time declaring the parties united in a bond indissoluble in 
its nature, the ecclesiastical courts sought to make it compulsory upon 
them to solemnize the marriage in facie ecelesise, and submit to all the 
burdens and exactions imposed by the church. This power they were 
enabled to exercise, for, by the ancient common law, temporal courts 
possessed no power nor jurisdiction to try the issue of ne unques 
aceoupU. The legality of espousals was always triable by the bishop, 
and, by the old rules of pleading, it was prohibited to bring in issue 
to the country a question which, like that of the legality of a marriage, 
it was the sole and exclusive privilege of the ecclesiastical courts to 
decide. Any plea, or replication tending to that effect, was treated 
as an attempt to oust the bishop of his jurisdiction ; and though the 
temporal courts are now considered as having the inherent power of 

1 Macq. Husb. and Wife, 5. 



CH. VI. J INCIDENTS OF THE IRREGULAR MARRIAGE. 105 

deciding incidentally, either upon the fact or legality of marriage, 
where they lie in the way to the decision of the proper objects of 
their jurisdiction, yet in cases of writs of dower, and other real 
actions, where the issue is upon the legality of the marriage, they 
have declined departing, except in cases of necessity, from the* old 
technical rule, which requires the mode of trying the question to be 
by the certificate of the ordinary. 1 The common law, as adminis- 
tered in the temporal courts, simply required that there should be a 
lawful marriage, as the foundation of civil rights, leaving the ques- 
tion as to what constituted a lawful marriage to be determined ac- 
cording to the law administered by the ecclesiastical courts : if a 
woman united to a man by contract only, without solemnization in 
facie ecclesise, did not recover dower, it was only because the eccle- 
siastical courts refused to acknowledge such a union as conferring 
the right upon her. It was the same with respect to questions of 
legitimacy, which depended, in general, upon the bishop's certificate. 2 
And this anomalous state of things was the result of the policy 
adopted by the ecclesiastical courts. If a private contract of mar- 
riage were entered into, the contracting parties found themselves 
burdened with obligations and responsibilities it was utterly out of 
their power to shake off during the period of their joint lives. If 
they cohabited together, though not punishable for fornication, they 
were nevertheless liable to spiritual censure. If either of them en- 
tered into a solemn and formal matrimonial alliance with another, 
the spiritual court would annul such second marriage, on the ground 
of the pre-contract, and pronounce the issue illegitimate. All the 
valuable property rights and incidents of marriage were withheld, 
and the consequence was, people were compelled, in the solemniza- 
tion of their marriages, to submit to the usurpations and comply 
with the requisitions of the ecclesiastical functionaries of the realm. 
11. But in the United States we have no courts of a spiritual 
character. With us there is no tribunal furnished with the machinery, 

*Park on Dower, 11, 12, and the authorities there cited; Robins v. Crutchley, 2 
Wilson's R. 127; Co. Litt. by Thomas, 33 a. note (C.) By the 20 & 21 Vict. c. 85, 
passed Aug. 28th, 1857, which went into operation in the following year, the English 
ecclesiastical courts are deprived of their jurisdiction over matrimonial causes, and 
anew court, called "The Court for Divorce and Matrimonial Causes," is thereby 
created, which exercises that jurisdiction. 

» Jacob's note, 2 Roper, Husb. and Wife, 473 ; 2 Bright, Husb. and Wife, 396. 
And see Haydon «. Gould, 1 Salk. 119 ; Bunting v. Lepingwell, 4 Coke, 29, and 
note (D); Kenn's case, 7 Coke, 42 b. and note (B.) 



106 THE LAW OF DOWER. [CH. VI. 

or clothed with the power, of compelling the specific performance of 
a contract to marry. 1 Hence if we adopt, without modification, the 
supposed rule of the common law upon this subject, we are in an 
infinitely worse condition than the people of England ; for while any 
of our citizens who should undertake to contract a marriage in prse- 
senti would be subjected to all the difficulties and embarrassments 
with which the ecclesiastical courts have environed the irregular 
marriage in England, in the event that either of the contracting 
parties should afterwards refuse to solemnize the marriage in a more 
formal manner, the other, having no forum to which to appeal for 
the enforcement of a more complete performance, would be neither 
married nor unmarried. If the man were the refractory party, the 
woman could not have her dower, and the issue, being under the ban 
of illegitimacy, would be deprived of the right of inheritance to the 
estate of the father. Consequences similar in their nature would 
flow from the refusal of the wife to consent to a formal solemnization 
of the contract, and the quasi husband would find himself shorn of 
his most important and valuable marital rights. 

12. It would be absurd to suppose that those American judges 
who have pronounced in favor of the validity of private marriages, 
ever contemplated the necessity of any superadded legal or clerical 
formalities to render them perfect and complete in all respects. 
" If we could presume that our legislature had in view the common 
law of England as declared by the judges in The Queen v. Millis," 
say the Supreme Court of .Ohio, " we cannot suppose that, in the 
absence and abnegation of all ecclesiastical power and authority 
over civil rights, there would have been a failure to provide some 
remedy, or to make some provision in reference to a contract which 
was so binding as to be ' indissoluble ; the parties could not release 
each other from the obligation.' 10 CI. & Fin. 832. The legislature 
must have proceeded on the idea of the entire inapplicability of any 
such rule of the common law in this State, where ecclesiastical author- 
ity binds those only who render a voluntary submission." 2 The case 
of Dumaresly v. Fishly, 3 where a marriage de prsesenti was treated as 
a marriage de facto, and, as such, good for some purposes only, and 

1 See Burtis v. Burtis, 1 Hopkins, 557 ; Perry v. Perry, 2 Paige, 501. 

2 Carmichael v. The State, 12 Ohio St. R. 553, 558; see, also, opinion of Ford, J., 
in Pearson v. Howey, 6 Halst. 12, and the observations of the court upon this sub- 
ject in The State v. Samuel, 2 Dev. & Bat. L. Rep. 177. 

» Dumaresly v. Fishly, 3 A. K. Marsh. 368 ; ante, ch. 4, \ 15. 



CH. VI.] INCIDENTS OF THE IRREGULAR MARRIAGE. 107 

the case of Mangue v. Mangue, 1 where a similar view was expressed, 
are the nearest approach we have to the application of the English 
doctrine in this country. 2 But under our system of laws it is a sole- 
cism in language to speak of a marriage as good for some purposes 
and not good for all — as a marriage which is not a marriage. And 
it may be safely said that in those States where the courts already 
have, or hereafter shall determine in favor of the validity of private 
marriages, such marriages will be regarded as being attended with 
all the civil rights and obligations which, under the ecclesiastical law, 
flow from a marriage duly solemnized in facie ecclesise, and therefore 
that they confer upon the wife the right to dower. 3 

1 Mangue v. Mangue, 1 Mass. 240 ; ante, oh. 4, \ 19. 

2 See strictures of Mills, J., in his dissenting opinion, upon the result of this doc- 
trine, 3 A. K. Marsh. 368. 

8 See Rose v. Clark, 8 Paige, 574 ; Starr v. Peck, 1 Hill, 270 ; Clayton v. Wardell, 
4 Comst. 230 ; Cheney v. Arnold, 15 N. Y. 345 ; Londonderry v. Chester, 2 N. H. 268. 



CHAPTER VII. 



OF MARRIAGES VOID IN LAW. 



§1,2. Marriage de facto and marriage 
dej'ure. 

3, 4. Matters which render a marriage 
void. 

6-15. Prior marriage undetermined. 
16,17. Idiocy. 
18-20. Lunacy. 
21. Duress. 
22-27. Fraud. 

28. Error. 

29. Marriage induced by duress, 



fraud, or through error, at the option 
of the injured party, treated as voidable 
only. 

30. Statutes requiring a decree of nul- 
lity. 

31. Marriage within the prohibited 
degrees. 

32-34. Marriage between whites and 
negroes. 

35-36. Failure to observe statutory 
regulations. 



Marriage de facto and marriage de jure. 

1. Littleton, in that part of his great work which relates to 
dower, says that the wife shall have her dower, whether she hath 
issue by her husband or no, and of what age soever she be, " so as 
she be past the age of nine years at the time of the death of her 
husband." 1 Lord Coke, in his commentary upon this text, remarks: 
"Here Littleton speaketh of a wife generally, and generally it is to 
be understood as well of a wife de facto as de jure." 2 The correct- 
ness of the principle thus tersely stated has received general if not 
universal recognition, both in the English and American courts, when- 
ever a case has arisen requiring its practical application. That a 
wife de jure — there having been no intervening divorce a vinculo — 
should be entitled to dower, could admit of no question. Nor could 
any serious doubts arise as to what constituted a marriage de jure. 
But the elements of a marriage de facto, and the characteristics dis- 
tinguishing it from a marriage of the other class, have not always 
been explained with clearness and precision. 

2. It has sometimes been supposed that the phrase " marriage de 



i Litt. \ 36. 
(108) 



3 Co. Litt. 33, b. 



CH.VII.] MARRIAGES VOID IN LAW. 109 

facto" imports a private marriage, or contract of matrimony con- 
cluded without the intervention of proper clerical or magisterial 
authority ; a marriage de jure, on the other hand, being understood 
to be such a marriage as is attended, in its solemnization, with all 
required statutory formalities. 1 But this is an error. A marriage 
de facto is not distinguished from a marriage de jure by the mode or 
manner of its celebration; a private marriage, in those States where 
the statutory requisites are not regarded as indispensable, being con- 
sidered as much a marriage de jure, and as perfect and complete in 
every respect as if all requirements of the statute had been scrupu- 
lously followed. 2 A marriage de jure is one that is neither void nor 
voidable in law. A marriage de facto is one that is open to legal 
objection, not from any want of the requisite solemnities, but from 
pre-existing impediments or other causes, rendering it liable to be 
dissolved ab initio, and therefore voidable? Although liable to be 
entirely annulled by decree of the proper tribunal, such a marriage 
is valid in law, and carries with it all the incidents of the marriage 
de jure until such decree is pronounced. 4 And if no decree of sepa- 
ration be actually made during the lifetime of both the parties, the 
marriage is then considered no longer voidable, but shall stand, for 
after the death of either of the parties it is too late to apply for the 
avoidance of the marriage contract. 5 Therefore, when Lord Coke 
observes that a wife de facto as well as a wife de jure is entitled to 
dower, he is to be understood as meaning that all marriages not abso- 
lutely void, including those that are voidable, but which have not 
been dissolved during the lifetime of the parties, confer a right to 
that estate ; and this is the well-established rule on this subject. 6 

1 See Dumaresly o. Fishly, 3 A. K. Marsh. 368 ; ante, eh. 4, \ 15 ; Mangue v. 
Mangue, 1 Mass. 241 ; ante, eh. 4, \ 19 ; 2 Roper, H. & W. 462. 

s See ante, eh. 6, \\ 11, 12. 

s Co. Litt. 32, a., 33, b.; 1 Roper, H. & W. 333 ; 2 Ibid. 462 ; 2 Bright, H. & W. 
385 ; Park, Dow. 14, 21 ; 1 Bl. Com. 434, and note ; Bishop, Mar. and Div. \ 57 ; 
Brury's case, 5 Co. 98, b.; Wickham v. Enfeild, Cro. Car. 352; Hemming v. Price, 
12 Mod. 432; Remington's case, Noy's Rep. 29; Sabell's case, 2 Dyer, 178, b.; 1 
Moore, 225-8 ; Elliott v. Gurr, 2 Phill. Ec. C. 16 ; Adkins v. Holmes, 2 Carter's (Ind.) 
R. 197; Bonham v. Badgley, 2 Gilm. 622 ; Cropsey v. McKinney, 30 Barb. 47; Gath- 
ings v. Williams, 5 Ired. L. 487 ; State v. Moore, 3 West. Law Jour. 134. 

* Ibid.; post, ch. 8, g 19. 

6 Ibid.; Shelf. Mar. and Div. 154. 

6 See the authorities cited ante, note 3. 



HO THE LAW OP DOWER. [CH. VII. 



Matters which render a marriage void. 

3. The right to dower does not attach upon a marriage void in 
law, and it is now proposed to notice briefly those matters which ren- 
der a marriage contract, although solemnized with every requisite 
formality, wholly ineffectual to confer the legal rights or incidents of 
the true marriage relation. 

4. The impediments to marriage are of two kinds — canonical and 
civil. The first interpose obstructions to the celebration of mar- 
riage ; the other affect its validity, notwithstanding its actual solem- 
nization in due form. The canonical disabilities are consanguinity, 
affinity, and impotence. They render a marriage voidable only, un- 
less otherwise provided by statute. 1 The civil disabilities are prior 
marriage undetermined, idiocy, lunacy or mental incapacity, and 
want of age. These disabilities, with the exception of the latter, 
make the contract void ab initio, because the parties are incapable 
of contracting. 2 Marriage procured by duress is also considered 
void ; and in some States the violation of certain statutory regula- 
tions is attended with the same result. The disability arising from 
want of age produces substantially the same effect as a canonical 
disability. The marriage may be avoided by either of the parties 
when the party laboring under the disability arrives at the age of 
consent. 3 

5. Prior marriage undetermined. — A second marriage, while a 
former husband or wife is living, is ipso facto void, without any 
divorce, as well by the spiritual as by the common law. 4 In the 
United States this rule has been applied in several cases involving 
the right of dower. 6 

6. By a statute of first James L, chap. 2, passed in 1603, it was 
made felony to contract a second marriage in England or Wales 
while the first husband or wife was living. A subsequent clause of 
the same statute introduced an exception in favor of all persons 
whose husband or wife had remained seven years beyond sea, or the 

i See ch. 8, \ 18. 

2 Shelf. Mar. and Div. 154; Bishop, Mar. and Div. \ 46, and ch. 11. 

' See Bishop, Mar. and Div. $ 56; post, ch. 8, \\ 2-10. 

« 1 Bl. Com. 434-6 ; Shelf. Mar. and Div. 223 ; Park, Dow. 304 ; 2 Kent, 79 ; 1 Salk. 
121 ; Riddlesden v. Wogan, Cro. Eliz. 858 ; Gaines ti. Keif, 12 How. U. S. 472. 

» Donnelly v. Donnelly, 8 B. Mon. 113 ; Smart v. Whaley, 6 Smedes & Marsh. 308 ; 
Higgins v. Breen, 9 Misso. 497 ; Smith v. Smith, 5 Ohio St. 32. 



CH. VII.] MARRIAGES VOID IN LAW. Ill 

same period within his majesty's dominions, not known by the other 
to be living; persons divorced, persons whose marriages had been 
judicially declared void, and persons married within the age of con- 
sent. In all these cases the party contracting the second marriage 
was exempted from the penalties attaching to the offence of bigamy. 
Subsequent legislation has changed this statute in some particulars. 
A divorce a men&a et thoro is no longer a protection against the 
penal consequences of a second marriage, nor is seven years resi- 
dence beyond the sea any protection, where the absent party is known 
to the other to be living. 1 

7. Many of the material portions of this act have been incorporated 
with the legislation of most and perhaps all the American States. 
By the statute law of New York the same exception against the 
penal consequences of a polygamous marriage is made, when the 
husband or wife, as the case may be, of the party who enters upon 
the second marriage, remains continually without the United States 
for five years together; or when one of the married parties shall 
have absented himself or herself from the other for the space of five 
successive years, and the one remarrying shall not know the other, 
who was thus absent, to be living within that time ; or when the 
person remarrying was, at the time of such marriage, divorced by 
the sentence of a competent court for some other cause than the 
adultery of such person ; or if the former husband or wife of the 
party remarrying had been sentenced to imprisonment for life; or if 
the former marriage had been duly declared void, or was made within 
the age of consent. 2 In Ohio the only exception from the operation 
of the statute against bigamy is where the former husband or wife 
has been continually and willfully absent for the space of five years 
together, and unheard from, next before the time of such marriage. 3 
In Massachusetts the absence must be for seven years. 4 Similar 
enactments will be found on the statute books of most of the States. 

8. Under the New York statute, where the husband or wife is 
absent for more than five years, and is not known to be living, and 
the other party has contracted a second marriage in good faith, such 
second marriage is voidable only, and not void, even though the first 

i Bishop, Mar. and Div. \ 203 ; Shelf. Mar. and Div. 226 ; Roger's Ecc. Law, 2d 
ed. 634. 
2 2 Kent, 79 ; 2 N. Y. Rev. St. pp. 139, 687 ; Ibid. 688, g 11. 
» 1 Swan & Critchfield's Rev. Stat. 404, \ 7. 
* Rev. St. 1836, 739, \ 3. 



112 THE LAW OF DOWER. [CH. VII. 

husband or wife returns. It stands as a good marriage until annulled 
by a court of competent authority in proceedings regularly instituted 
for that purpose. 1 But, except in those States where provisions of 
this character are in force, the clause exonerating parties from re- 
sponsibility to the criminal laws has no other effect. It gives no 
validity to the second marriage; for it is a principle of the common 
law, and one generally recognized throughout the Christian world, 
that no length of time, or absence, and nothing but death, or the 
decree of a court clothed with full power to that end, can dissolve 
the marriage tie. In the absence of all statutory regulations to the 
contrary, this principle applies in the United States. For this 
reason, although the penalties denounced by the criminal law against 
polygamy are not incurred in the excepted cases, yet if the former 
husband or wife be living, though the fact be unknown, and the first 
marriage has not been duly dissolved, the second marriage is abso- 
lutely void, and both parties are subjected to the harsh consequences 
resulting from an unlawful connection. 2 So far as the guilty party 
is concerned, it may be that these consequences furnish no just 
ground of complaint against the law. Not so, however, as to the 
party who, as unfortunately sometimes happens, by artifice and de- 
ceit, has been entrapped into the forbidden connection. Where a 
pure-minded and virtuous female, innocent of all wrong, has been 
heartlessly deceived into an alliance sanctioned by all the formalities 
bestowed upon lawful wedlock, no good reason can be urged why, as 
some compensation for the cruel wrong inflicted upon her, she should 
not be entitled to all the rights and claims of a wife upon the estate 
of the guilty individual who has betrayed her confidence ; and it is 
far from creditable to the civilization of the age that no step has yet 
been taken in that direction. In some of the States the severity of 
the common law has in one important particular been essentially 

i 2 E. S. 139, \ 6 ; Valleau u. Valleau, 6 Paige, 207 ; Cropsey v. McKinney, 30 
Barb. 47. See Bishop, Mar. and Div. \ 55. 

2 1 Roll. Abr. 340, pi. 2; 357, pi. 40; 360 F.; Poynter, Mar. and Div. 146; Bishop, 
Mar. and Div. \ 205 ; 2 Kent, 80 ; Ganer v. Lanesborough, Peake, 17 ; Kenley v. Ken- 
ley, 2 Yeates, 207 ; Williamson ». Parisien, 1 John. Ch. 389 ; Fenton v. Reed, 4 John. 
52; Zule v. Zule, Saxton, 96; The State v. Moore, 3 West. Law Jour. 134; Smith v. 
Smith, 5 Ohio St. 32 ; Heffner v. Heffner, 11 Harris, Pa. St. 104 ; Janes v. Janes, 5 
Blackf. 141 ; Sellars v. Davis, 4 Terg. 503 ; Young v. Naylor, 1 Hill's Eq. (S. C.) 383 ; 
Smith v. Smith, 1 Texas, 621 ; Martin v. Martin, 22 Ala. 86 ; Smart v. Whaley, 6 
Smedes & M. 308; Higgins v. Breen, 9 Misso. 497; Donnelly v. Donnelly, 8 B. 
Mon. 113. 



CH. VII.] MARKIAGES VOID IN LAW. 113 

mitigated. In Ohio, Missouri, Texas, and California there are stat- 
utory provisions which declare that the issue of all marriages deemed 
null in law, shall nevertheless be legitimate. 1 But, with the excep- 
tion of Louisiana, it is believed there is no State where the stern rule 
of the common law, operating with equal severity against the inno- 
cent and guilty parties to the second marriage, has been so modified 
as to give to the wife any right in the husband's estate. 

9. In Louisiana, where the more liberal rule of the civil law is 
recognized, the courts, in some measure, protect the wife, where she 
is the innocent party, against the cruel consequences which the com- 
mon law visits upon a matrimonial contract rendered null by reason 
of a previous marriage. If a woman be deceived into marriage with 
a man who has a former wife living, she is entitled, so long as the 
deception continues, to all the rights of a wife, 2 and the children 
born during the same period are regarded as legitimate. The same 
rule prevailed in Texas before the introduction of the common law 
into that State, and while it was subject to the law of Mexico. And 
by the same system the second marriage is converted into a complete 
and lawful marriage by the removal of the disability ; as, if there be 
a former husband or wife of one of the parties living, the marriage 
becomes good on the death of such person. 3 

10. And there are occasional cases to be found in other States, in 
which the courts, evidently shocked at the unbending severity and 
injustice of the common law in its failure to discriminate between the 
innocent and the guilty, have gone very far in their efforts to divest 
particular cases of the hardships attending the application of the 
rule. Thus in Donnelly v. Donnelly,* parties were regularly married, 
in 1817, in the State of Kentucky. They cohabited together as 
husband ^and wife until the death of the husband, a period of about 
twenty-one years, and were the parents of a family of children, issue 
of the marriage. The wife brought considerable property to the 
husband, all of which was freely surrendered to him, and during the 



1 Wright v. Lore, 12 Ohio St. 619 ; Linceoum v. Lincecum, 3 Misso. 441 ; Hartwel 
v. Jackson, 7 Texas, 576 ; Graham v. Bennett, 2 Cal. 503. 

2 Clendenning v. Clendenning, 15 Mart. La. 438, (vol. iii. s. s. 587.) See Hubbell 
». Inkstein, 7 La. Ann. 252. 

3 Bishop, Mar. and Div. \ 208 ; Smith v. Smith, 1 Texas, 621. And see Yates v 
Houston, 3 Texas, 433 ; Lee v. Smith, 18 Texas, 141 ; Patton v. Philadelphia, 1 La- 
Ann. 98. 

* Donnelly v. Donnelly, 8 B. Mon. 113. 

VOL. I. 8 

« 



11-1 THE LAW OP DOWER. [CH. VII. 

entire period of the cohabitation she had deported herself as a true 
and faithful wife. After his death, claimants for his estate appeared 
from the State of Maryland, founding their demand upon the alleged 
fact that they were the lawful issue of a marriage contracted by the 
deceased some twenty-five years anterior to the marriage in Ken- 
tucky, and that the wife of that marriage was living at the time of 
the second marriage. Upon a trial had, all these statements were 
satisfactorily established by evidence, and the court was compelled 
to hold the second marriage absolutely void. But it being shown 
that after the death of the first wife the parties to the subsequent 
marriage had continued their connection as husband and wife ; that 
they treated each other as such, and were generally reputed as hold- 
ing that relation, the court pronounced this evidence sufficient to 
justify the presumption of a marriage after the death of the first 
wife, although, as a matter of fact, the evidence tended very clearly 
to show that the Kentucky wife had no knowledge o"r suspicion of the 
first marriage until after the decease of her husband. Not entirely 
satisfied, however, that all the facts and circumstances taken together 
fully supported this presumption, the court proceeded to show that 
there were other grounds upon which the claim of the supposed wife 
to such portion of the estate of the deceased husband as would be 
equivalent to her dower, might be satisfactorily placed : " But if we 
should be mistaken in this view of the case," say they, " and it should 
even be conceded that the facts and circumstances do not authorize 
the presumption of the marriage after the death of the first wife, 
and consequently that the defendant would not be entitled to dower, 
still we think she established an equitable claim to relief, equal at 
least to the value of a dower estate. She shows most satisfactorily 
that her own means, property obtained from her by Donnelly, and 
her industry and economy, contributed largely in the acquisition of 
the estate of which he died possessed. It appears that he received 
from her $800 to $1000, or property to that amount. She surren- 
dered it to him upon the supposition that he was her lawful husband, 
and, so far as appears, labored under that impression till his death. 
Under such circumstances the statute of limitations relied upon by 
the guardian ad litem for several of the complainants, who were in- 
fants, has no application whatever to the case. She was defrauded 
of her estate, and the fact has but recently come to her knowledge. 
Donnelly, so far from being able to rely upon it, would be estopped 
to deny that she was his lawful wife. The complainants find her in 



CH. VII. J MARRIAGES VOID IN LAW. 115 

possession, by judgment of law, of an estate which she claimed as 
the lawful wife of their ancestor, a relation which he was estopped 
to deny. And it may be questioned, whether the complainants, in 
reference to the rights of the defendant, should not be regarded as 
occupying the attitude of their ancestor. That they cannot render 
available the lapse of time, there can, in our opinion, be no doubt. 
The defendant, whether ever the lawful wife of Donnelly or not, has, 
in our opinion, an equitable claim at least equal to the dower estate 
which has been allotted to her." 

11. In Jackson v. Claw, 1 the Supreme Court of New York also 
went to great lengths in sustaining a claim for dower in a somewhat 
similar case. At the time of the marriage a former wife was known 
by the husband to be living, and there was good reason to suppose 
that the demandant was also cognizant of the fact. A year or so 
after the second marriage the first wife left the country, and was not 
heard of afterwards. The court held, first, that absence of the first 
wife for seven years, without having been heard from during that 
time, furnished presumptive evidence of her death: secondly, that 
although the second marriage was void, the first wife being alive 
when it was contracted, yet the subsequent continued cohabitation 
of the parties, coupled with the reputation of their marriage, and the 
good character which they bore in society, justified the presumption 
that they had solemnized a new contract of marriage after the pre- 
sumed death of the first wife, so as to entitle the second wife to 
dower in the lands of which the husband was seized after that pe- 
riod. In Texas, also, the courts have gone very far in presuming a 
marriage in a like case, even where the evidence tended strongly to 
show that the connection was illicit at its commencement. 2 

12. The case of Woods v. Woods 3 differs from the preceding cases 
in the important fact that the second marriage was not solemnized 
until after the former husband had been absent for seven years un- 
heard from, and consequently not until after his presumed death. 
A report of his death had also reached the wife before the second 
marriage. Dower was awarded her in the estate of the second husr 
band, and the issue of the marriage were adjudged legitimate. " The 
presumption of law," said the court, "in support of marital rights is 
much more to be favored than a presumption against them, especially 

i Jackson v. Claw, 18 John. 346. * Yates v. Houston, 3 Texas, 433. 

• Woods t>. Woods, 2 Bay, 476. 



116 THE LAW OP DOWER. [CH. VII. 

when such unfavorable presumption goes to bastardize the issue of a 
marriage apparently legal and proper." 

13. It is also worthy of remark that where it is sought to inter- 
pose an alleged prior marriage to defeat the claims of the wife, the 
courts, as a general thing, exact full and satisfactory proof of such 
marriage. Thus, in a proceeding for dower in Mississippi, the claim 
was resisted on the ground that at the time of the marriage the de- 
ceased husband had another wife living.' It was proven that four 
years before the marriage he was living with another woman whom 
he treated as his wife ; and that he said, after his marriage, and in 
presence of the petitioner, that his first wife was living in Georgia. 
It was held that this evidence was not sufficient to make out the 
defence. 1 

14. While upon this subject, it is proper to notice that in some of 
the States certain statutory restrictions, more or less comprehensive, 
are in force, by which a second marriage is forbidden for a stipulated 
period after a previous marriage has been dissolved by a divorce a 
vinculo. In Kentucky the statute of 1809 provides that a decree 
of divorce shall " not authorize the injured party again to contract 
matrimony within two years from the time of pronouncing such final 
decree." And it has been held that if the injured party contracts 
a second marriage within the two years, it is a nullity, good for no 
purpose whatever. 2 The same statute declares that the offending 
party shall remain subject to all the pains and penalties which the 
law prescribes against a marriage while a former husband or wife is 
living. 3 

15. In many of the States the guilty party is prohibited by statute 
from entering into a second marriage during the lifetime of the other, 
and it is usually held that a violation of this provision makes the 
second marriage void. As to the party in fault, the effect of these 
statutory inhibitions is to place him or her under the same disability 
as if no decree of divorce had passed. Thus, in Cropsy v. Ogden, 4 
where a divorce had been decreed for the adultery of the husband, 
and he was subsequently married in due form in the lifetime of the 
first wife, it was held that the marriage was void, and did not confer 
dower. But this restriction is treated as being penal in its nature, 

i Hull v. Rawls, 27 Miss. (5 Cush.) 471. 

2 Cox v. Combs, 8 B. Mon. 231. 3 Ibid. Act of 1809, 1 Stat. Law, 123. 

* Cropsy v. Ogden, 1 Kern. 228 ; Accord. Calloway v. Bryan, 6 Jones' Law, 
(N. C.) 569. 



CH. VII.] MARRIAGES VOID IN LAW. 117 

and therefore is usually confined to the jurisdiction which imposes 
it. 1 Nor does it apply to foreign divorces. 2 It is made a question 
whether the mere prohibition, without words of nullity, should be 
construed to make void a marriage contracted in disobedience tto the 
prohibition. Generally it has been held to have that effect. In a 
case recently considered in Georgia, however, the court intimated 
that the marriage would be good, or, at all events, voidable only. 3 
In North Carolina it is held that where a person has been divorced 
by reason of misconduct on his or her part, and is, therefore, under 
the laws of that State prohibited from marrying again, and, for the 
purpose of evading the law, goes into another State, and there enters 
into a second marriage, such marriage is void, precisely as if con- 
tracted in the State. 4 The case in which this doctrine is announced 
is opposed to the Massachusetts and Tennessee cases above referred 
to, and is believed to be in conflict with the rule upon this subject as 
commonly understood and applied in our courts. 5 In Massachusetts, 
however, by a recent statute, a rule similar to that prevailing in 
North Carolina is adopted. 6 

16. Idiocy. — There is no doubt that at one period it was supposed 
an idiot d nativitate was competent to contract matrimony, and that 
after his death his widow was entitled to dower in his estate. "This 
doctrine as to idiots is mentioned as a point adjudged in one case, 
and seems confirmed by allowing dower to the wife of an idiot." 7 
Lord Coke, without any apparent hesitation, states it as the rule that 
" the wife of an idiot, non compos mentis, or the like, shall be en- 
dowed." 8 So Sergeant Hawkins, in his Abridgment of Coke on 
Littleton, maintains "that the wife of an idiot shall have dower." 9 
And in Viner's Abridgment we have the following : " If an idiot d 
nativitate takes a wife, they are baron and feme in law, and their 
issue legitimate, for he may consent to a marriage. Trin. 3 Jac. 

1 Bishop, Mar. and Div. \\ 211, 212, 655-659; Cambridge v. Lexington, 1 Pick. 
506 ; Putnam v. Putnam, 8 Pick. 433 ; Dickson v. Dickson, 1 Yerger, 110. 

» Ibid. 

8 Park v. Barron, 20 Geo*. 702 ; Bishop, Mar. and Div. \ 212. 

1 Williams v. Oates, 5 Ired. 535 ; see, also, Calloway v. Bryan, 6. Jones' (N. C.) 
Law R. 569 

s The People v. Hovey, 5 Barb. 117. 

6 Rev. Stat. Mass. ch. 76, \ 6; Smith v. Smith, 13 Gray, 209. See Common- 
wealth v. Hunt, 4 Cush. 49. 

» Co. Litt. 80, a. note. 8 Co. Litt. 31, a. 

Page 42. 



118 THE LAW OF DOWER. [CH. VII. 

B. R. between Still and West, adjudged upon a special verdict." 1 
"A strange determination," says Blackstone, "since consent is ab- 
solutely requisite to matrimony, and neither idiots nor lunatics are 
capable of consenting to anything." 2 The force of this reasoning is 
obvious, and it is difficult to understand upon what principle it was 
ever held that a person void of understanding, and absolutely inca- 
pable of directing the most ordinary affairs of life, was nevertheless 
competent to form a connection so important in its consequences as 
that of matrimony. 

17. Whatever may have been the ancient doctrine upon the sub- 
ject, it is now well settled that the marriage of an idiot is absolutely 
void, and therefore confers no right to dower. This rule appears to 
result necessarily from the principle that the consent of a free and 
rational agent is an essential ingredient to the validity of the mar- 
riage contract. 3 

18. Lunacy. — The same rule, founded upon like reason, prevails 
where either of the parties was insane at the time the marriage con- 
tract was entered into. 4 At common law a lunatic was considered 
capable of marrying during a lucid interval, but by statute of 15th 
Geo. II. c. 30, all marriages with lunatics are declared void, although 
they may have been contracted during lucid intervals. But this 
statute is limited to cases where a commission of lunacy has been 
taken out, and where this has not been done, a marriage during a 
lucid interval is good. 5 As the statute of George II. is not in force 
in the United States, it is supposed that the rule of the common law 
generally prevails in this country. It may be remarked, in this 
connection, that when unsoundness of mind is relied upon to defeat 

i 4 Vin. Abr. 35, pi. 8 ; see, also, Co. Litt. 30, b. note 2 : Kolle's Abr. 357 ; 1 
Roper, H. & W. 339 ; Reeve's Dom. Rel. 201 ; Hamaker v. Hamaker, 18 111. 137 ; 
Park v. Barron, 20 Geo'. 72. 

2 1 Bl. Com. 438. 

» Shelf. Mar. and Div. 183 ; 1 Bl. Com. 438 ; Park on Dower, 16 ; per Lord Stow- 
ell, in Turner v. Meyers, 1 Hagg. Con. R. 414; Sir J. Nicholl, in Browning v. 
Reane, 2 Phill. R. 69; 2 Kent, 75, 76; 1 Roper, Husb. and Wife, 339; Lambert on 
Dower, 17 ; Bishop on Marriage and Divorce, chap, ix.; Jenkins v. Jenkins, 2 Dana, 
(Ky.) 102; Crump v. Morgan, 3 Ired. Eq. (N. C.) 91; Foster v. Means, 1 Speer's 
Eq. (S. C.) 569 ; Farnshill v. Murray, 1 Bland, (Md.) 479 ; True v. Ranney, 1 Fost. 
N. H. 52 ; Keyes v. Keyes, 2 Fost. N. H. 553 ; Ward v. Duloney, 23 Missis. 410 ; 
Rawdon v. Rawdon, 28 Ala. 565. 

4 See authorities cited to preceding section. 

5 Shelf. Mar. and Div. 190; 1 Roper, Husb. and Wife, 339; Park on Dower, 16 ; 
1 Bl. Com. 439. 



CH. VII.] MARRIAGES VOID IN LAW. 119 

the marriage contract, it must be shown to have existed at the time 
the contract was entered into. Subsequent insanity does not 
avoid it. 1 

19. It is also a well-established principle that no decree of nullity 
is necessary in cases either of idiocy or insanity, as preliminary to 
the right to insist upon the existence of the disability in any pro- 
ceeding in which the question may legitimately arise. The ques- 
tion may be made and decided, in a proceeding for dower, for dis- 
tribution, or in any other proceeding affecting rights or claims 
depending upon the validity or invalidity of the alleged marriage 
contract. 2 

20. A general discussion of the law relating to mental incapacity, 
and its proper application to the matrimonial contract, is foreign to 
the scope and purposes of this work. Questions as to the extent of 
mental unsoundness or imbecility necessary to disqualify a person 
from entering into the marriage contract ; of the evidence requisite 
to establish that condition of the understanding; upon whom the 
burden of proof devolves ; as to the effect of cohabitation, and recog- 
nition of the marital relation during lucid intervals ; of temporary 
alienation of mind produced by excessive intoxication; and other 
questions of a kindred character, all of vital importance, and fre- 
quently extremely difficult of elucidation, have been treated at length, 
and with great learning and ability, in works specially devoted to 
the subject. To those works, and the reported cases cited in the 
note, the reader is referred for further information upon any or all 
of the questions thus arising. 3 

i Shelf. Mar. and Div. 190 ; Bishop, Mar. and Div. \ 180 ; Parnell v. Parnell, 2 
Hagg. Con. R. 169; Page on Divorce, 185, note. 

2 2 Kent, 76; Park, Dow. 17 ; Bishop, Mar. and Div. g 187 ; 2 Greenl. Ev. {! 464 ; 
Wightman v. Wightman, 4 John. Ch. 343; Jacques v. The Public Admr., 1 Bradf. 
Sur. 499 ; Middleborough v. Rochester, 12 Mass. 863 ; Jenkins v. Jenkins, 2 Dana, 
102; Foster v. Means, 1 Speer's Eq. (S. C.) 569; Johnson v. Kincade, 2 Ired. Eq. 
470 ; Rawdon v. Rawdon, 28 Ala. 565. 

By statute the rule is otherwise in Minnesota and Wisconsin, and a decree of nul- 
lity is necessary to avoid the marriage. So in New York; post, \ 30. 

9 Shelf, on Lunacy, 2 Law Lib.; Stock on the Law of Non Compotes Mentis, 25 
Law Lib.; Ray's Med. Juris, of Insanity; Wharton & Still's Med. Juris.; Shelf. 
Mar. and Div. 33 Law Lib. 199 ; Browning v. Reane, 2 Phill. 69, 70 ; Turner v. Meyers, 
1 Hag. Con. R. 414 ; Portsmouth v. Portsmouth, 1 Hag. Ec. 355 ; Wheeler v. Alder- 
son, 3 Hag. Ec. 574, 598 ; Kemble v. Church, 3 Hag. Ec. 273 ; Parker v. Parker, 2 
Lee, 382 ; Middleborough v. Rochester, 12 Mass. 363 ; Anonymous, 4 Pick. 32 ; 
McElroy's case, 6 Wa,tts & Serg. 451 ; Foster v. Means, 1 Speer's Eq. (S. C.) 569; 



120 THE LAW OF DOWER. [CH. VII. 

21. Duress. — As the free assent of the mind is essential to every 
contract, and constitutes its very essence, it follows that, where an 
apparent consent to a contract of marriage is the result purely of 
compulsion, fear, or violence, the material element to its validity is 
wanting, and it is therefore void. A marriage thus procured may be 
treated as null in every court in which its validity is drawn in 
question. 1 This doctrine, at one period, was a matter of contro- 
versy among the common law lawyers, 2 but it is now too firmly 
established upon authority to admit of serious question. 

22. Fraud. — The law with reference to fraud, as affecting the 
marital contract, is in a condition of perplexing uncertainty. 3 Chan- 
cellor Kent pronounces marriages procured by fraud void ah initio, 
and places them in the same category with marriages induced by 
force. 4 Judge Reeve, in discussing the question, makes use of the 
following emphatic language: "A man, by the foulest fraud, gets 
into possession of the property of his neighbor. A contract thus 
basely obtained, is not only void, but in many instances the obtain- 
ing of it is a felony. The common sense of mankind must revolt at 
the idea, that when a man, by the same abominable fraud, obtained 
the person of an amiable woman, and her property, that the law 
should protect such contract, and give it the same efficacy as if fairly 
obtained. The truth is, that a contract which is obtained by fraud, 
is, in point of law, no contract. The fraud blots out of existence 
whatever semblance of a contract there might have been. A mar- 
riage procured without a contract can never be deemed valid. There 
is no more reason for sanctioning a marriage procured by fraud than 
one procured by force and violence. The consent is as totally want- 
ing, in view of the law, in the' former as in the latter case. The true 
point of light in which this ought to be viewed, I apprehend, is, that 
the marriage was void ah initio; but it is necessary to have a divorce 

Ward v. Duloney, 23 Missis. 410 ; Powell v. Powell, 27 Missis. 783 ; Clement v. Mat- 
tison, 3 Rich. (S. C.) 93; Pettitt v. Pettitt, 4 Humph. 191-3: Terry v. Buffington, 
11 Geo. 337. The subject is also discussed at' length by Mr. Bishop ; Bishop, Mar. 
and Div. ch. 9. 

i Rolle's Abr. Bar. and Feme, ( A. ) pi. 5 ; 4 Vin. Abr. p. 35, pi. 5 ; 1 Wood. Lect. 253 ; 
Shelf. Mar. and Div. 213 ; 2 Kent, 76, 77 ; Bishop, Mar. and Div. §§119-21; Park, Dow. 
16; Amer. Jur. No. 39, p. 29; 2 Greenl. Ev. § 464; 2 Hagg. Con. R. 104, 246; 
Reeve's Dom. Rel. 41, 201. 

2 See note to pi. 5, p. 35, 4 Vin. Abr. tit. Bar. and Feme ; Reeve's Dom. Rel. 201. 

8 Bishop, Mar. and Div. \ 98, u,. 

* 2 Com. 76; Accord. Ferlat v. Gogin, 1 Hopk. 478 ; Perry v. Perry, 2 Paige, 501. 



CH. VII.] MARRIAGES VOID IN LAW. 121 

by the court, since the marriage has been celebrated, that all con- 
cerned may be apprised that such marriage has no effect." 1 

23. A recent writer, while noticing the uncertainty with which the 
subject is surrounded, and the conflicting opinions and observations 
in regard to it to be found in the books, nevertheless expresses his 
concurrence in the conclusion of Chancellor Kent and Judge Reeve, 
and gives it as his clear conviction that the result of the authorities 
is against the validity of marriages procured by fraud. 2 In some 
cases, no doubt, the application of this principle would be recom- 
mended by reason and strong natural justice. But it is exceedingly 
difficult to determine what elements of fraud should entitle the in- 
jured party to treat the marriage as void ah initio, and what should 
furnish ground for its dissolution merely. 

24. It seems clear that fraudulent practices by either of the-parties 
with reference to the character, fortune, or health of such party, do not 
render the marriage void. 3 So it is said a marriage which has been 
brought about by conspiracy is not "for that reason void, if neither of 
the parties participated in the conspiracy. 4 It has been decided, also, 
that a marriage entered into for the purpose of injuriously affecting 
third persons in their property interests, is not void. As where a 
widow woman, having an interest in property determinable with her 
widowhood, married an intemperate man of no means, for the pur- 
pose of terminating her interest, and causing the estate to be imme- 
diately vested in her children, the object being to defeat a levy made 
at the instance of her creditors upon her interest in the estate, it 
was held that the marriage was nevertheless valid, although she re- 
fused to cohabit with the man she had married, and in fact never 
intended to cohabit with him. 5 It is likewise held that a false repre- 
sentation by a woman that she is a virgin, does not render void a 
marriage entered into upon the faith of such representation, even 
though it be shown that she has been a common prostitute. 6 And 

1 Reeve's Dom. Rel. 206-7. See 2 Greenl. Ev. <j 464. 

2 Bishop, Mar. and Div. \\ 98, a., 99. 
» Ibid. \ 100 ; 2 Kent, 77. 

i Rex v. Birmingham, 8 B. & C. 29, 15 Eng. C. L. 161, 2 Man. & R. 230; Sullivan 
■o. Sullivan, 2 Hagg. Con. R. 238, 246; Barnes v. Wyethe, 2 Williams, (Verm.) 41; 
Benton v. Benton, 1 Day, 111 ; Shelf. Mar. and Div. 215 ; Bishop, Mar. and Div. ch. 6. 

6 McKinney v. Clarke, 2 Swan, (Tenn.) 321. 

e Perrin v. Perrin, 1 Add. Ec. 1 ; Reeves v. Reeves, 2 Phill. 125-7 ; Graves v. 
Graves, 3 Curtis, Ec. 325 ; Scroggins v. Soroggins, 3 Dev. 535 ; Bishop, Mar. and 
Div. \ 105, and note. 



122 THE LAW OF DOWER. [CH. VII. 

the rule is the same as to a marriage induced by untruthful state- 
ments respecting the paternity of the child with which she is preg- 
nant. 1 

25. It is indeed questionable whether the decided cases in the 
United States go further than to establish the doctrine, that a mar- 
riage procured by fraud may be dissolved upon the application of 
the party who has been deceived. There appears to be no case hold- 
ing, such a marriage ipso facto void. 2 Yet, as has been remarked, 
the opinions of those text writers who declare a marriage contract, 
resulting from deceitful practices and fraudulent contrivances, utterly 
and absolutely invalid, appear to be founded in sound reason, and 
the application of the rule, as claimed by them, would perhaps be 
attended with just results. In the Scotch law this doctrine appears 
to be well established. 3 But the propriety of a decree of nullity in 
such cases, that the invalidity of the marriage may be judicially 
ascertained, is so obvious as to require no further comment. 

26. The question whether a fraudulent marriage is ipso facto void, 
or voidable only, is important in its connection with the law of dower. 
Where a divorce has been decreed by reason of the fraud, no diffi- 
culty arises, for in such case it is clear the right to dower does not 
exist. But if the marriage be voidable merely, and not void, then, 
as we have seen, in the absence of a decree during the lifetime of 
the parties, annulling the marriage contract, it stands as a good 
marriage, and gives the right of dower. 1 

27. There is a class of cases in which marriages, apparently regu- 
lar in form, between parties laboring under no disability, have never- 
theless, and with reason, been adjudged invalid. Thus, where a per- 
son is induced to go through the forms of a regular marriage, relying 
upon representations by the other party that the ceremony will not 
be binding, and the person thus imposed upon does not intend that 
it shall be followed by cohabitation, in all such cases, as no actual 
consent is given, the marriage is void. 5 

1 Moss v. Moss, 2 Ired. Law R. 55. See Seott v. Shufeldt, 5 Paige, 43. 

2 But see Ferlat v. Gogin, 1 Hopk. 478 ; Perry v. Perry, 2 Paige, 501. 

a Allan v. Young, Ferg. Rep. 37; Stair, 1, 9, and 1, 10, 13, 3d par.; Ersk. 3, 1, 
16; Ferg. Consis. Law, 107; 1 Fras. Dom. Rel. 234-37; Bishop, Mar. andDiv. \\ 109- 
114. See, also, Shelf. Mar. and Div. 134, 187, 214. 

* Ante, U 1. 2. 

5 See Clark v. Field, 13 Verm. 460 ; Mount Holly v. Andover, 11 Verm. 226 ; Rob- 
ertson v. Cowdrey, 2 West. Law Jour. 191; 1 S. W. Law Jour. 167; Bishop, Mar. 
and Div. \ 115. 



CH.VII.] MARRIAGES VOID IN LAW. 123 

28. Error. — Cases sometimes arise in which one of the parties to 
a marriage contract is mistaken or deceived as to the personal iden- 
tity of the other. Upon this class of cases Chancellor Kent has the 
following observations : " It is said that error will, in some cases, 
destroy a marriage and render the contract void, as if one person be 
substituted for another. This, however, would be a case of palpable 
fraud, going to the substance of the contract; and it would be diffi- 
cult to state a case in which error simply, and without any other 
ingredient, as to the parties, or one of them, in respect to the other, 
would vacate the contract." 1 Mr. Bishop expresses the following 
views upon the same subject •? "Inasmuch as there must be a consent 
in order to constitute marriage, if there is such a mistake in one or 
both of the parties, that the formal consent given does not apply to 
the person with whom the formal marriage is celebrated, then the 
marriage is a mere nullity; but if it does apply, then the marriage 
is good, unless fraud has entered into the matter of mistake, in such 
a way as to render it invalid on this ground." He also has the fol- 
lowing observations, which are germain to the same subject: "If a 
person of bad character, to enter into a marriage, assumes the name 
of a person of good character, and the other party does not, there- 
fore, marry the individual he intends, the marriage is a nullity. But 
if he marries the one he intends, it is good, though such one passes 
under an assumed name. In the latter instance there is consent to 
take the individual with whom the ceremony is performed ; in the 
former there is not such consent." 3 

Marriage induced by duress, fraud, or through error, at the option 
of the injured party, treated as voidable only. 

29. Judge Reeve, in his work on the Domestic Relations, lays 
down the following rule : "A woman who is by force carried away, 
and married against her consent, will not be entitled to dower, even 
if she afterwards consents to live with him who carried her away by 
force. A statute of Richard II. disables her from claiming dower. 
The real ground of her disability, I apprehend, is, that such mar- ' 
riage is void, notwithstanding some dicta to - the contrary." 4 Mr. 

1 2 Com. 77. 2 Bishop, Mar. and Div. I 116, a. 

3 Bishop, Mar. and Div. § 115 ; Rex v. Burton-upon-Trent, 3 M. & S. 537 ; Lord 
Stowell, in Heffer v. Heffer, 3 M. & S. 265 ; Clowes v. Clowes, 3 Curt. Ec. 185-91. 
Reeve's Dom. Rel. 41. 



124 THE LAW OF DOWER. [CH. VII. 

Lambert states the rule in the same way, and in nearly the same 
language. 1 This view appears to rest upon the theory that a con- 
tract supposed to be absolutely void in itself is utterly incapable of 
confirmation, and can not, like a- contract which is merely voidable, 
be rendered valid at the option of the aggrieved party. But it would 
seem that the better rule is not to permit the party who has been 
guilty of the wrong to take advantage of it. Accordingly it is said 
that the party imposed upon may waive the wrong, and thereby 
render the marriage good. 2 And voluntary cohabitation after knowl- 
edge of the fraud or error, or after the cause of the fear is removed, 
amounts to such a waiver as will cure the defect. 3 

Statutes requiring a decree of nullity in certain cases. 

30. By a statute of New York, already referred to, 4 it is provided 
that, "when either of the parties to a marriage shall be incapable, for 
want of . . . understanding, of consenting to a marriage, ... or when 
the consent of either party shall have been obtained by force or fraud, 
the marriage shall be void from the time its nullity shall be declared by 
a court of competent authority." 5 If the plain letter of this and simi- 
lar "enactments be adhered to, it would seem that in the States where 
they are in force, marriages contracted with idiots, lunatics, or under 
duress, or through fraud, are valid to all intents, until dissolved by 
decree. In other words, the effect of the statute is to make them 
voidable only, and not void. 6 A similar law is in force in Wisconsin, 7 
and probably in other States. Professor Greenleaf seems to have 
entertained the opinion that at common law a marriage claimed to 
be invalid on the ground of want of consent, will be held good, unless 
the subject has been investigated, and its invalidity established in a 
suit instituted for the purpose of annulling it ; 8 but the authorities 
relied on by him do not appear to support this proposition. 9 

» Lambert, Dow. 17. 2 Bishop, Mar. and Div. \ 122. 

» Ibid. See The State v. Murphy, 6 Ala. 765 ; Scott v. Shufeldt, 5 Paige, 43 ; Ayl. 
Par. 361 ; Roger's Eo. Law, 2d ed. 643; 1 Fras. Dom. Rel. 229. 

* Ante, \l 7, 8. » 2 Rev. Stat. N. Y. 139, g 4. 

B Held otherwise as to a contract deprsesenti with a lunatic; Jacques v. The Public 
Admr., 1 Bradf. Sur. R. 499. 

* Wiscon. R. St. ch. 79, g 2. And also in Minnesota; Stat. Minn. (1849-58,) p. 
463, | 2. See criticism of Mr. Bishop on this statute; Bishop, Mar. and Div. \ 62, 
and note. 

s 2 Greenl. Ev. J 464, note. 

9 See ante, \\ 21-25; Bishop, Mar. and Div. \ 62, note. 



CH. VII.] MARRIAGES VOID IN LAW. 125 

Marriage within the prohibited degrees, 

31. We have before observed that marriage within the prohibited 
degrees of affinity or consanguinity is voidable only, and not void, 
and such is the rule of the common law. 1 But in many, and prob- 
ably most of the United States, such marriages, under some excep- 
tions, are declared void by express statute. 2 In England, by statute 
of 5 and 6 Will. IV., chap. 54, all marriages solemnized after the 31st 
of August, 1835, within the prohibited degrees, either of affinity or 
consanguinity, are made absolutely void. 3 In the States where no 
change has been introduced by statute, the rule of the common law 
may be regarded |s in force, and in those States, therefore, mar- 
riages within the prohibited degrees, unless dissolved by proper 
decree, will confer the right to dower. 4 

Marriage between whites and negroes. 

32. In many of the States the amalgamation of the white and 
black races by marriage is looked upon as a violation of the first law 
of nature, and alliances of this kind are not only discountenanced by 
the courts, but are absolutely forbidden by law. Thus, in the case 
of Dupre v. Boulard, 5 where a marriage had been entered into in 
France between a free white person and a person of color, the court 
refused to sanction the marriage, and Spofford, J., in delivering the 
opinion of the court, used the following language: "Whatever valid- 
ity might be attached in France to the singular marriage contract, / 
and subsequent unnatural alliance there celebrated between the plain- 
tiff and the deceased testatrix, it is plain that under the facts in evi- 
dence, the courts of Louisiana cannot give effect to these acts without 
sanctioning an invasion of the laws, and setting at naught the delib- 
erate policy of the State." A statute of North Carolina prohibiting 
marriages between whites and persons of color, includes in the latter 
class all who are descended from negro ancestors to the fourth gen- 
eration inclusive, though one ancestor of each generation may have 

i Ante, <j 4. 

2 2 Kent, 82-85, and notes ; Bishop, Mar. and Div. \ 60, and ch. 12 ; 2 Greenl. Ev. 
I 464; 1 Hilliard, R. P. 129, g 26. 

3 For it table of the prohibited degrees, see Shelf. Mar. and Div. 169 ; Bishop, 
Mar. and Div. \ 219, note. 

1 Adkins v. Holmes, 2 Carter's (Ind.) R. 197. 
6 Dupre v. Boulard, 10 Ea. Ann. 411. 



126 THE LAW OP DOWER. [CH. VII. 

been a white person. 1 Marriages of •whites and blacks were forbid- 
den in Virginia from the first introduction of blacks into that State. 2 
And in California all marriages between whites and negroes or mulat- 
toes are declared illegal and void. 3 

33. By the Massachusetts province law of 1705 no person of a 
Christian nation was permitted to marry a negro or mulatto. A 
marriage between a white person and a negro, Indian, or mulatto 
was also declared void by the act of 1786. 4 The revised statutes of 
1836 in like manner forbid white persons from intermarrying with 
Indians, negroes, or mulattoes, 6 but this prohibition has since been 
repealed. 

34. In Indiana, by a recent statute, a marriage, when one of the 
parties is a white person and the other is possessed of one- eighth or 
more of negro blood, is declared void. 6 The 13th article of the 
constitution of 1851 provides that no negro or mulatto shall come 
into or settle in that State; that all contracts made with those 
coming into the State contrary to such prohibition, shall be void ; 
that to employ or encourage such negro to remain in the State shall 
be punishable by fine; that all such fines shall be appropriated- to 
colonization ; and that the General Assembly shall pass laws to 
carry these provisions into effect. 7 The General Assembly passed 
an act to enforce this article of the constitution, the 7th section of 
which reads as follows : "Any person who shall employ a negro or 
mulatto who shall have come into the State of Indiana subsequent 
to the thirty-first day of October, one thousand eight hundred and 
fifty-one, or shall hereafter come into the said State, or who shall 
encourage such negro or mulatto to remain in the State, shall be 
fined in any sum not less than ten dollars, nor more than five hun- 
dred dollars." 8 It was held in the Supreme Court of the State that 
these provisions extended to marriage contracts; and that conse- 
quently where a man of color who resided in the State at the time 
the new constitution took effect, entered into a marriage contract' 
with a woman of color who subsequently moved into the State from 
Ohio, such marriage was absolutely void. " The marriage solemnized 

i State v. Walters, 3 Iredell, 455. 2 1 Hen. Stat. 146. 

» Wood's Cal. Dig. 486, g 3. « 2 Dane, 293. 

6 Kev. Stat. 1836, p. 475, § 5 ; p. 479, g 1. The latter section makes such mar- 
riages void without a divorce. 
« 1 Kev. Stat. 1852, p. 361, g 2. 
'1R.S. Ind. p. 67. s 1 R. S. Ind. p. 375. 



CH. VII. J MARRIAGES VOID IN LAW. 127 

in Ohio County, Indiana," remarked the court, "is urged as an ex- 
ception taking the case out of the statute. But such an exception 
can not be admitted, both because no such exception is recognized, 
either in the constitution or the law enacted to give it effect, and 
because the marriage itself, solemnized in contravention of both, must 
be regarded as void. Marriage in this State is but a civil contract. 
As such it is clearly embraced in the constitutional provision, copied 
into the subsequent law, which declares all contracts made with 
negroes and mulattoes coming into the State contrary to the pro- 
visions of the 13th article, void. The consequences are not a legiti- 
mate consideration for the courts. A constitutional policy so deci- 
sively adopted, and so clearly conducive to the separation and ulti- 
mate good of both races, should be rigidly enforced. So that 
Barkshire can claim nothing from the supposed relation of husband 
and wife. To give that relation any consideration favorable to him, 
would be to countenance an infraction of the fundamental law." 1 

Failure to observe statutory regulations. 

35. Many of the States have prescribed certain regulations for the 
due solemnization of marriage ; but as a general rule the non-observ- 
ance of these does not render the marriage void, although the offender 
is commonly subjected to certain penalties as a punishment for the 
omission to fulfill their requirements. Consent of parents and guar- 
dians, where either of the parties is under a certain age, is usually 
required ; a license must be obtained, or notice given by publication 
of the bans ; the ceremony is directed to be performed either by a 
clergyman or some temporal authority named in the law. Some- 
times, also, the ceremony must be performed in a certain locality, as 
in the township or county where the parties, or one of them, may 
reside, or over which the clergyman or other authority solemnizing 
the marriage has clerical or magisterial jurisdiction. These and like 
requisitions, are found in the statutes of many of the States. 

36. The effect of these several statutory provisions has, to some 
extent, been incidentally considered and the American cases reviewed 
in the preceding chapters. In those States where a marriage entered 
into by mere words of present consent is held good, it is plain the 
absence *f statutory formalities will not vitiate, the contract. And 

1 Barkshire v. The State, 7 Porter's Ind. Rep. 389. 



128 THE LAW OF DOWER. [CH. VII. 

the general rule is that a marriage good at the common law, is good, 
notwithstanding the existence of any statute on the subject, unless 
the statute contain express words of nullity. 1 There are cases, how- 
ever, in which it has been held that marriages not celebrated accord- 
ing to statutory requisitions, are for that reason void. 2 In some 
States, also, the statutes are imperative in form, and not directory 
merely, and it is absolutely essential to a valid marriage that their, 
material requirements be strictly followed. 

1 Bishop, Mar. and Div. gg 167-75; 2 Kent, 85, 88-91; Reeve's Dom. Rel. 196, 
200, 290; Londonderry v. Chester, 2 N. H. 268; Pearson v. Howey, 6 Halst. 12; 
Rodebaugh v. Sauks, 2 Watts, 9 ; Helffenstein v. Thomas, 5 Rawle, 209 ; The State 
v. Robbins, 6 Ired. 23 ; Newbury v. Brunswick, 2 Verm. 151 ; Dumaresly v. Fishly, 
3 A. K. Marsh. 368; Hargroves o. Thompson, 31 Missis. 211; Park v. Barron, 20 
Geo. 702 ; Goodwin v. Thompson, 2 Greene's (Iowa) R. 329 ; Parton u. Hervey, 1 
Gray, 119; Hiram o. Pierce, 45 Maine, 367; Carmichael v. The State, 12 Ohio 
State, 553. 

2 Milford v. Worcester, 7 Mass. 48; Dunbarton v. Franklin, 19 N. H. 257; Bruns- 
wick v. Litchfield, 2 Greenl. 32 ; Ligonia v. Buxton, 2 Greenl. 102 ; The State v. 
Hodgskins, 19 Maine, 155; Bashaw v. The State, 1 Yerg. 177; Grisham v. The 
State, 2 Terg. 589. 



CHAPTER VIII. 



OF MARRIAGES VOIDABLE IN LAW. 



\ 1. Introductory. 
2-10. Marriage within the age of 
consent. 

11-17. When marriage within the age 
qf consent confers dower. 



\ 18. Impotence. 
19. Effect of decree of nullity. 
20-23. Rule as to foreign marriages. 



1. But little need be added to what has been said in the preceding 
chapter respecting the nature of voidable marriages. In discussing 
the question as to what matters render a marriage void, it became 
necessary, to some extent, to consider and point out the distinction 
between void and voidable marriages, and to show what rights attach 
upon such marriages as are voidable only; particularly where no 
sentence of nullity has passed during the joint lives of the parties. 1 
We have also seen, in that connection, that while the canonical dis- 
abilities of consanguinity or affinity, at common law render a mar- 
riage voidable merely, in many of the United States, marriages 
within the prohibited degrees are pronounced void by express statute. 2 
We pass now to the consideration of other topics connected with the 
same general subject. 

Marriage within the age of consent. 

2. Marriages contracted within the age of consent are frequently 
spoken of as wholly void, and as conferring none of the civil rights 
of marriage ; 3 but in reality they belong rather to the class of void- 
able marriages, and unless avoided by the parties upon arriving at 
the age of consent, are as good in law as if contracted between per- 
sons of the proper age. There is, however, this difference between 
marriages of this description and of the" class usually denominated 



i Chap. 7, \\ 1, 2. 2 Chap. 7, <S 31. 

s See Elliott v. Gurr, 2 Phill. 16; -1 Eng. Ecc. 166, 168; Bishop, Mar. and Div. 
§199. 

vol. I. 9 (129) 



130 THE LAW OF DOWEB. [CH. VIII. 

voidable marriages, that in the latter a decree of a competent tribu- 
nal is necessary to dissolve the marriage, while in the former no such 
decree is necessary. The parties may, at the proper time, by their 
own act, disaffirm the contract, and will thereupon stand discharged 
from all its obligations. 1 

3. It has been stated that at common law the age of consent is 
fourteen for males and twelve for females. 2 '" The full age of male 
and female, according to common speech," says Littleton, "is said 
the age of twenty-one years. And the age of discretion is called 
the age of fourteen years ; for at this age, the infant which is mar- 
ried within such age to a woman, may agree or disagree to such mar- 
riage;" 3 This language would appear to import that the age of con- 
sent, for both sexes, is fourteen ; but Lord Coke, in commenting upon 
this section, says: " The time of agreement or disagreement, when 
they marry infra annos nubiles, is for the woman at twelve or after, 
and for the man at fourteen or after." 4 And Mr. Hargrave adds: 
" It seems more proper to consider twelve as the age of discretion 
for women; for Lord Coke himself, a few lines lower, states that to 
be their time for agreeing or disagreeing to a marriage." 5 This view 
has been generally concurred in/and the rule has become well estab- 
lished in the law. 6 

4. In many of the States the rule of the common law as to the 
age of consent has been considerably varied by statute, while in 
others that rule substantially remains in force. 7 But whatever may 
be the age of consent established by statute, it would seem, in the 
absence of any provision to the contrary, that marriages contracted 
within that age are subject to the same rule obtaining in that class 
of cases at common law ; and that whatever rights are recognized at 
common law as attaching upon marriages within the age of consent, 
will also, as a general rule, be recognized and enforced in the several 
States where the only material change made by legislation is in 

1 As to contracts of marriage per verba defuturo, where one of the parties is within 
the age of consent, and the other has attained that age, see post, \ 7. 

» Ante, chap. 3, \ 3. » Litt. sec. 104. 

4 Co. Litt. 79, a.; see, also, p. 33, a. 5 Co. Litt. 79, a., note 3, 13 ed. 

• Ayl. Parer. 361 ; Pool v. Pratt, .1 D. Chip. R. (2 Verm.) 252 ; 1 Bright, Husb. 
and Wife, 4 ; Arnold v. Earle, 2 Lee, 529 ; 1 Roper, Husb. and Wife, 335 ; 1 Bl. 
Com. 436 ; 2 Kent, 78 ; Bishop, Mar. and Div. \\ 191, 192 ; The Governor v. Rec- 
tor, 10 Humph. (Tenn.) R. 57; Parton v. Hervey, 1 Gray, 119; Rex v. Gordon, 
Russ. & Ry. 48 ; Reeve's Dom. Rel. 200, 237. 

' See 2 Kent, 79, notes ; Reeve's Dom. Rel. 200, notes. 



CH. VIII.] MARRIAGES VOIDABLE IN LAW. 131 

respect to the time when the parties are competent to contract 
matrimony. 

5. Allusion has been made to the rule enabling either of the par- 
ties to affirm or disaffirm a marriage contract entered into within the 
age of consent. 1 Lord Coke, after stating the age of agreement or 
disagreement of the woman at twelve, and of the man at fourteen, 
adds : " And there need no new marriage if they so agree ; but dis- 
agree they can not before the said ages, and then they may disagree 
and marry again to others without any divorce ; and if they once 
after give consent they can never disagree after. If a' man of the 
age of fourteen marry a woman of the age of ten, at her age of 
twelve he may as well disagree as she may, though he were of the 
age of consent ; because in contracts of matrimony, either both must 
be bound, or equal election of disagreement given to both ; and so 
e eonverso, if the woman be of the age of consent, and the man 
under." 2 

6. The rule thus succinctly stated needs little in the way of ex- 
planation or amplification. Either party may take advantage of the 
non-age of either, even though one of them may have been of full 
age at the time of the marriage ; but neither can avoid the marriage 
by reason of such non-age until both have reached the age of con- 
sent. And so, when both parties have arrived at that age, they may 
affirm the contract, and it will thenceforth be binding upon them, 
and constitute a complete marriage. Evidence of such affirmance is 
furnished by their continued cohabitation ; by sexual intercourse, or 
other acts clearly indicating a purpose on their part to regard each 
other as husband and wife. 3 But in England, by the marriage act 
of 26 Geo. II. c. 33, the agreement to affirm the contract would not 
be binding on the infant if the marriage was without bans, or by 
license and without consent of parent or guardian, unless the infant 
was a widow or widower. 

7. To the rule allowing either party to disaffirm the contract by 
reason of non-age, there is this exception : Where a person of full 
age enters into a contract of marriage per verba de futuro with a 

i See ante, \ 2, and post, \\ 15, 16. 

2 Co. Litt. 79, b.; see, also, p. 33, a.; 2 Kent, 78; Bishop, Mar. and Div. \\ 194, 195; 
Swinb. Spousals, 34 ; Reeve's Dom. Rel. 237 ; 1 Bl. Com. 436. 

3 Ayl. Parer. 250 ; 2 Dane's Ab. 301 ; Coleman's case, 6 N. Y. City Hall Recorder, 
3 ; Com. Dig. Bar. and Feme, B. 5 ; Hubback on Succession, 272 ; Bishop, Mar. 
and Div. \ 196. 



132 THE LAW OP DOWER. [CH. VIII. 

person under the age of consent,, the former is absolutely bound, and 
the contract is only voidable at the election of the infant. 1 " This 
doctrine of reciprocity," remarks Mr. Hargrave, "where one of the 
parties is an infant, or under the age of discretion, however true it 
may be in its application to actual marriages or to contracts of mar- 
riage per verba de prsesenti, must not be considered as extending to 
other contracts with an infant, not even contracts of marriage per 
verba defuturo; for in them, the person of full age may, it is said, 
be bound at all events by our law, and yet as to the infant the con- 
tract may be voidable." 2 It would seem, therefore, that where a con- 
tract of marriage per verba de futuro is consummated by copula, 
though within the, age of consent of one of the parties, the contract 
is voidable only at the election of such party. 

8. A statute was enacted in New York, many years since, by 
which it was provided that where either of the parties to a marriage 
contract was incapable, by reason of want of age, from entering into 
such contract, it should be void only from the time its nullity was 
declared by a court of competent jurisdiction. 3 This law was sub- 
stantially re-enacted in Wisconsin, 4 and perhaps in some other States. 
The effect of this legislation is to take from the parties to a marriage 
contracted within the age of consent, the right to disaffirm it by their 
own act, and compels them to resort to the courts for a decree of 
dissolution. 

9. In the case of Goodwin v. Thompson, 6 a very interesting ques- 
tion, in regard to the effect of a statute fixing the, age of consent at 
eighteen years in males and fourteen in females, was discussed and 
decided by the court. The point considered and determined was, 
whether the statute, by implication, abrogated the rule of the com- 
mon law. It was held that it did not, but was merely cumulative 
thereto. " There is no prohibition of the marriage of a minor," say 
the court, "who may be under fourteen years of age, expressed. 
The statute is merely cumulative in its operation, and cannot have 
the effect of repealing the common law, so as to render the contract 
void. Such has been the decision of this court, as well as the courts 



i 2 Kent, 78. 

2 Harg. note, Co. Litt. 82, ». and b. 13 ed.; see, also, Holt v. Ward Clarenoieux, 
2 Str. 937 ; Contra, Swinb. Spousals, 36. 
s 2 Rev. St. N. Y. 139, I 4. * R. S. Wisconsin, c. 79, g 2. 

6 Goodwin v. Thompson, 2 Greene's (Iowa) Rep. 329. 



CH. VIII.] MARRIAGES VOIDABLE IN LAW. 133 

of last resort in nearly all the States of the Union, in declaring the 
effect of statutes similar to ours." 1 

10. A different conclusion appears to have been arrived at by the 
Supreme Court of Ohio sitting in bank. In the case of Shafher v. 
The State, 2 it was held by that court, under a statute almost identical 
with that of Iowa, that marriages contracted in Ohio by male persons 
under the age of eighteen, and female persons under fourteen, are 
invalid unless confirmed by cohabitation after arriving at those ages 
respectively. In that case Shafher, the plaintiff in error, at the age 
of sixteen, with the consent of his father, was married to one Eliza- 
beth Emerick, with whom he lived and cohabited until he was nearly 
eighteen. Shortly before arriving at the age of eighteen he deserted 
his wife, married again, and continued to live with his second wife 
until after he arrived at that age. On a prosecution for bigamy, it 
was held that the firs,t marriage being within the age of consent fixed 
by statute, and having been disaffirmed by the husband on arriving 
at that age, was of no validity, and consequently that the crime 
charged had not been committed. It appears to have been assumed, 
rather than decided, that the statute, by implication, repealed the 
common law, and herein lies the point of difference between the 
two courts. 

By a statute of Arkansas, if the husband is under seventeen, or 
the wife is under fourteen, the marriage is void. 3 

When marriage within the age of consent confers the right to dower. 

11. It is one of the peculiarities of the law of dower, that for the 
purposes of that estate, a marriage may be good although contracted 
before the age of consent, and although the husband die before hav- 
ing arrived at that age. This anomalous doctrine owes its existence 
to the favor with which the law regards the estate of dower. 4 Lit- 
tleton says that the wife shall have dower of what age soever she be, 
"so as she be past the age of nine years at the time of the death of 
her husband, for she must be above nine years old, at the time of the 
decease of her husband, otherwise she shall not be endowed." 5 And 
Lord Coke adds : " Therefore if the wife be past the age of nine 
years at the time of the death of her husband, she shall be endowed, 

1 See, also, Parton v. Hervey, 1 Gray, 119 ; Bennett v. Smith, 21 Barb. 439. 

s Shafher v. The State, 20 Ohio Rep. 1. 

3 Ark. Rev. St. 535. 4 Park, Dower, 17. 6 Litt. sec. 36. 



134 THE LAW OF DOWER. [CH. VIII. 

of what age soever her husband be, albeit he were but four yeara 
old. Quia junior non potest dotem promereri, neque virum susti- 
nere ; nee obstabit mulieri petenti minor setas viri. Wherein it is 
to be observed, that albeit consensus non concubitus facit matrimo- 
nium, and that a woman can not consent before twelve nor a man 
before fourteen, yet this inchoate and imperfect marriage, (from the 
which either of the parties of the age of consent may disagree,) after 
the death of the husband, shall give dower to the wife, and therefore 
it is accounted in law, after the death of the husband, legitimum 
rnatrimonium, a lawful marriage quoad dotem. If a man taketh a 
wife at the age of seven years, and after alien his land, and after 
the alienation the wife attaineth to the age of nine years, and after 
the husband dieth, the wife shall be endowed ; for albeit she was not 
absolutely dowable at the time of the marriage, yet she was condi- 
tionally dowable, viz. if she attained to the age of nine years before 
the death of the husband, for so Littleton here saith, so that she 
pass the age of nine years at the death of her husband, for by his 
death the possibility of dower is consummate." 1 

12. In Fitzherbert's Natura Brevium the rule is thus stated : "A 
woman at the age of nine years or more, at the death of her hus- 
band, shall have dower of his land. And if she be of less age at 
the death of her husband, then she shall not have dower." 2 The 
same doctrine is stated in Bacon's Abridgment, with this reason re- 
garding the requirement that the wife shall be nine years of age 
added : " The reason the law would not allow women before this age 
to demand dower, seems from their incapacity to have issue sooner. 
The support of the children is part of the consideration whereon 
this allowance of dower is founded ; and as, on the one hand it would 
be unreasonable to extend it to such women as are incapable of per- 
forming the conditions ; so on the other hand it would not be reason- 
able to exclude women of sufficient age, by reason of the incapacity 
of their husbands." 3 The same author remarks further : " If a man 
marries a woman of one hundred years old; and dies, she shall be 
endowed ; for the law can not determine the precise time of the fail- 
ure of her capacity to have issue, which may vary according to the 
strength and other circumstances of the woman." 4 And upon this 
subject, Lord Coke very gravely observes : "Albeit the wife be a 

i Co. Litt. 33, a. > Fitzh. N. B. 149, L. > 2 Bac. Ab.- 358 et seq. 

4 Ibid. See, also, to the same effect, 1 Koper on Husb. and Wife, 341. 



CH. VIII.] MARRIAGES VOIDABLE IN LAW. 135 

hundred years old, or that the hushand at his death was hut four or 
seven years old, so as she had no possibility to have issue by him, 
yet seeing the law saith that if the wife be above the age of nine 
years at the death of her husband, she shall be endowed, and that 
women in ancient times have had children at that age whereunto no 
woman doth now attain, the law can not judge that impossible, which 
by nature was possible. And in my time a woman above threescore 
years old hath had a child, and ided non definitur in injure. And 
for the husband being of such tender years, he hath habitum, though 
he hath not potentiam at that time, and therefore his wife shall be 
endowed." 1 

13. In 3 Dyer, 368, b., the following case is reported : A woman 
of full age contracted matrimony per verba de prsesenti with a young 
man within the age of twelve years, and the marriage was solemnized 
in the face of the church. The married couple afterwards occupied 
the same bed together, but the husband died before arriving at the 
age of consent. Upon a claim for dower by the widow, she was met 
with a plea of ne unques accouple, and the question was propounded 
whether the ordinary ought to certify in favor of the legality of the 
marriage. The doctors to whom the question was referred, returned 
the following answer : " We are all of opinion, in this case, that she 
is to be accepted and taken for a lawful wife, and to be accoupled in 
lawful matrimony ; and that the ordinary ought to so certify it, as 
the case is put touching dower ; although otherwise they are sponsa- 
lia defuturo, yet in a cause of dower they shall be extended to be 
true matrimony ratione privilegii." Accordingly judgment was 
given in behalf of the demandant. 2 

14. There is not an entire concurrence in the opinion expressed 
by Lord Coke as to the right of the wife to dower where the husband 
dies under the age of seven .years. It is laid down by some authors 
that if either party to a marriage- is below that age, it is a mere nul- 
lity. 3 And it is maintained with much force that if we receive at all 

1 Co. Litt. 40, a. and b.; see, also, 1 Roll. Abr. 675, pi. 10; Doct. and Stud., Dial. 
1, chap. 7; 2P, Wms. 704 ; Leigh and Hanmer's case, 1 Leon. 52, 54. 

2 See pp. 305, 313 of the same volume, showing a controversy between the tempo- 
ral and ecclesiastical courts respecting the form in which the certificate should be 
returned by the bishop. 

» 2 Burn's Ec. Law, 434 ; Swinb. on Spousals, 20, 23 ; Chitty's Notes to 1 Bl. Com. 
p. 436, note 11 ; Bishop, Mar. and Div. \\ 194, 197. See, also, Bro. Dow. pi. 88, 
where it is said that if the feme is of the age of nine years, and the baron is not of 
seven years, she shall not have dower. Contra, if he is of seven years, at the time 
of his death ; also, 13 Co. 20, Menvil's case. 



136 THE LAW OF DOWER. [CH. VIII. 

the inability of boys and girls below seven years to enter into even 
an imperfect marriage, the result must follow that, while one of the 
parties is below seven, the marriage is completely null, whatever be 
the age of the other. 1 

15. We have quoted very freely from the old books such portions 
as have a direct bearing upon the subject now under consideration. 
Although there is some conflict of opinion as to the right of the wife 
to dower where either party is under the age of seven years at the 
time the marriage is contracted, there appears to be no question 
but that, by the common law, if the parties reach that age, and 
the wife live to the age of nine years, she is entitled to dower, 
although the husband die within the age of consent, and while the 
marriage, therefore, in the language of Lord Coke, is yet "imper- 
fect and inchoate." How far this rule is to be considered as form- 
ing a part of the law' of marriage in the United States, is a very dif- 
ficult question to determine. Chancellor Kent, relying entirely upon 
the old common law authors above referred to, says that dower 
" belongs to a marriage within the age of consent, though the hus- 
band dies within that age ;" 2 but it is believed there is not to be found 
in the whole range of American Reports a single adjudicated case 
authoritatively determining this question. It is very rarely indeed 
that a contract of marriage is entered into, in this country, by per- 
sons within the common law age of consent ; and it would seem en- 
tirely safe to say that a female child of the tender age of nine years 
or under, was never yet offered nor taken in marriage in any part of 
the United States. A case is reported in New York, where a man 
contracted marriage with a girl under the age of twelve years ; but 
she immediately declared her ignorance of the nature and conse- 
quences of the ceremony, and repudiated the connection, and upon 
a bill filed by her next friend, the Court of Chancery ordered her to 
be placed under the protection of the court as a ward, and prohibited 
the man from all intercourse or correspondence with her. 3 

16. It will be perceived that the solution of this question does not 
depend so much upon the point, whether a change by statute in the 
age of consent amounts to an abrogation of the common law in that 
particular, as upon the further question, whether the rule which in- 
vests with a right of dower the wife of a marriage entered into before 

» Bishop, Mar. and Div. g 197. 2 4 Com. 36. 

3 Aymar v. Raff, 3 John. Ch. 49. 



CH. VIII.] MARRIAGES VOIDABLE IN LAW. 137 

the parties are by law competent to contract matrimony, and not- 
withstanding the husband dies before reaching the required age, 
forms a part of the common law of this country. By the common 
law of England, as we have seen, the age of consent for males is 
established at fourteen years, and for females at twelve years ; and 
until they arrive at those ages respectively, they are considered 
absolutely incapable of contracting a perfect marriage. Yet if they 
actually enter into a marriage contract, the right to dower attaches, 
even though the husband die before attaining the age when, in law, 
he is competent to make the contract perfect and complete. So far 
as this doctrine is concerned, it is immaterial at'what time the age 
of consent may be fixed by law. The right of dower is conferred as 
well by a marriage entered into before as after that period, and as 
well where the husband lives to the required age to affirm it as where 
he dies before it is reached. Yet there is an obvious propriety and 
justice in the rule, notwithstanding its anomalous character, and it 
may admit of serious question whether any attempt at its material 
modification, either by legislative or judicial authority, would not be 
productive of more harm than good. For example, in a number of 
States the age of consent is fixed at eighteen for males and fourteen 
ibr females. Suppose a marriage, regular in all respects, be entered 
into in good faith, by a young man in his eighteenth year, with a 
female of the legal age ; that they assume all the duties and respon- 
sibilities of the marital relation, and cohabit as husband and wife, 
down to the period of the death of the husband, which occurs shortly 
before he becomes eighteen. Shall it be said that here was no mar- 
riage, and that the wife is not entitled to dower? And if this ques- 
tion be answered in the negative, where, in the absence of any stat- 
utory regulation upon the subject, and unless the rule of the common 
law be adopted, shall the line be drawn which is to distinguish — with 
respect to marriages contracted within the age of consent, and where 
the husband dies before arriving at that age — between marriages which 
confer upon the wife the right to dower, and those which do not ? 
Some rule must be adopted and adhered to, and as that of the com- 
mon law has the merit of being long established, well known, and 
understood, and not unreasonable in itself, there would seem to be 
no good reason for rejecting it, and substituting a new and perhaps 
uncertain one in its stead. The case decided in Iowa, 1 before referred 

1 Goodwin v. Thompson, 2 Greene's (Iowa) Rep. 329 ; ante, \ 9. 



138 THE LAW OF DOWER. [CH. VIII. 

to, proceeds upon the ground that the common law upon this subject 
is, in all respects, in full force in that State; and while the Ohio 
case 1 maintains that a change by statute in the age of consent abro- 
gates the common law rule, in so far as to substitute the age fixed 
by statute for that established by the common law, it by no means 
is to be understood as denying to a marriage entered into within the 
statutory age, the right of dower, where the husband has died before 
arriving at that age without having done any act in disaffirmance of 
the contract, or manifested any disposition to deprive the woman he 
had sworn to cherish and protect, of that provision humanely intended 
by the law to furnish to her and her children sustenance and support 
after his death. 2 

17. The case of Bourne and Wife v. Simpson 3 ,bears, though some- 
what remotely, upon this question. In that case certain parties had 
intermarried while they were both minors, the wife being about 
fifteen. She was possessed of property valued at $7000, the hus- 
band of property estimated at $60,000. During the coverture he 
was seized in fee simple of a tract of land which was afterwards, and 
during the coverture, regularly sold and conveyed under execution 
issued against him. The wife made no relinquishment to the pur- 
chaser of her dower in these lands. Subsequently a separation took 
place, and in 1840 proceedings for divorce and alimony were insti- 
tuted by the wife, she then being about eighteen years of age, pend- 
ing which, by consent of parties given in court, a decree was rendered 
for alimony, divesting the husband of all claim and interest, legal 
and equitable, which he might have by virtue of the marriage, in the 
real and personal estate of the father of the petitioner, and of a 
brother who had died without issue. The decree also gave her cer- 
tain personal property, including such articles as she then had in 
possession. It was "further decreed and ordered, by consent of the 
said Margaret in open court, that the right, interests and property 
by the decree vested in her is accepted and received by her in lieu 
and satisfaction of all claims which she may have for dower, pro- 
vision in alimony against her husband, or out of his estate of any 
kind whatever." The bill was continued so far as it prayed a divorce. 
With one exception, she received and used all the property mentioned 



i Shafher v. The State, 20 Ohio Eep. 1 ; ante, \ 10. 

2 See Parton v. Hervey, 1 Gray, 119. 

3 Bourne and Wife v. Simpson, 9 B. Mon. (Ky.) Rep. 454. 



CH. VIII.] MARRIAGES VOIDABLE IN LAW. 139 

in the decree. Before she reached full age, the husband filed his bill 
for divorce, which was granted, and the wife was afterwards twice 
married. The first husband having deceased, the wife and her then 
husband commenced a suit for her dower in the lands of the former, 
sold on execution during the coverture, as before mentioned, and in 
support 6f this claim it was urged — 1. That the decree of divorce 
could not in any way impair the right to dower ; 2. That any consent 
she might have given to the decree entered in the proceeding insti- 
tuted by her for divorce and alimony could not bind her, for two 
reasons : First, because she was an infant at the time ; and secondly, 
because no agreement after marriage, made with the husband, can 
have any effect to bar or defeat the right to dower. The court de- 
cided against the claim, holding that the provision made by the decree 
for the wife was in lieu of dower ; that such a decree against an infant 
feme covert, though rendered with her consent, was not legal, but 
subject to reversal ; yet that it was not void, and so long as it stood 
unreversed was binding upon her. It was also held that the facts 
and circumstances of the case showed that she had acquiesced in the 
decree after she became of age. 

Impotence. 

» 

18. Impotence is defined by Mr. Shelford to "consist in the inca- 
pacity for copulation, or in the impossibility of accomplishing the 
act of procreation." 1 The definition given by Fraser is substantially 
the same. 2 Mr. Bishop regards the following as a better definition : 
" Impotence is such an incurable incapacity as admits of neither copu- 
lation nor procreation." 3 It is not necessary, however, to enter upon 
the details of this subject, inasmuch as it is admitted on all hands 
that impotence does not render a marriage void, but voidable only, 
and consequently, unless sentence is passed during the lifetime of 
both the parties, the marriage, notwithstanding this impediment, is 
good. 4 

i Shelf. Mar. and Div. 202. 

* Fras. Dom. Rel. 53. 

* Bishop, Mar. and Div. \ 228. 

* Ibid. \ 260; Poynter, Mar. and Div. 123; Elliott v. Gurr, 2 Phillim. 16, 19; 1 
Eng. Ec. 166-8; Sneed v. Ewing, 5 J-. J. Marsh. (Ky.) 460. See, as to voidable 
marriages, ante, eh. 7, \\ 1, 2, 4. Upon the subject of impotence generally, see 
Bishop, Mar. and Div. ch. 14; Shelf. Mar. and Div. 201 et seg., and authorities 
there cited. 



140 THE LAW OF DOWER. [CH. VIII. 



Effect of a decree annulling a voidable marriage. 

19. Whenever a marriage, by reason of any pre-existing impedi- 
ment, is regarded as voidable by the law, a sentence annulling the 
marriage for such cause makes it void ah initio, and consequently 
defeats all claim to dower founded thereon. 1 Impotence is a disabil- 
ity of this character, and although it is mentioned in the statutes of 
most of the States as a ground of divorce, and it is not declared 
whether the decree shall operate to annul the marriage as from the 
beginning, or only as from the date of its rendition, it seems clear 
that upon principle it comes within the rule applicable to other void- 
able marriages. 2 The doctrine is the same where fraud is made a 
ground of divorce. It should be remembered, however, that the de- 
cree, in order to have this effect, must be founded upon one of the 
causes which render a marriage voidable ; for if a divorce be granted 
for matter arising subsequent to the marriage contract, that does not 
render the marriage void ah initio, but dissolves it from the date- of 
the decree only, although there may have been good cause, by reason 
of some pre-existing disability, to annul the marriage as from the 
beginning. 3 

Foreign marriages. 

20. It is a general principle of international law, that marriages 
celebrated in a foreign country or state, according to the laws of 
such country or state, shall be held and treated as good and legal 
marriages everywhere. 4 It is equally well settled as a general propo- 



1 Park, Dow. 19; Kenn's case, 7 Co. 140, 43, b.; Boll. Abr. tit. Dow. (R.) pi. 
1-5; 9 Vin. Abr. 252, tit. Dow. (R.) pi. 1-5; Co. Litt, 32, a., 33, b.; Jenk. 44; 
Shelf. Mar. and Div. 483-4; 1 Bl. Com. 434; Bishop, Mar. and Div. gg 46, 53-59, 
235 ; Aughtie v. Aughtie, 1 Phill. 201 ; Perry v. Perry, 2 Paige, 501. 

2 Bishop, Mar. and Div. <S 261. 

3 See Park, Dow. 20 ; Rennington v. Whithipole, referred to in Howard v. Bartlet, 
Hob. 181 ; cited, Vaughan, 249, 322, 9 Vin. Abr. tit. Dow. (R.) pi. 4. 

* Story, Conn. Laws, gg 79-81 ; 2 Kent, 92 ; Park on Dower, 21 ; Bishop, Mar. 
and Div. \ 125 et seq.; Compton v. Bearcroft, Bui. N. P. 114; Sutton v. Warren, 10 
Met. 451 ; Commonwealth v. Hunt, 4 Cush. 49 ; Swift v. Kelly, 3 Knapp, 257 ; Lacon 
v. Higgins, 3 Stark. 178; Morgan v. McGhee, 5 Humph. 13 ; Wall v. Williamson, 8 
Ala. 48 ; Patterson v. Gaines, 6 How. U. S. 550 ; Phillips v. Gregg, 10 Watts, 158 ; 
Fornshill v. Murray, 1 Bland, 479; 2 Roper, Husb. and Wife, 496; The State v. Pat- 
terson, 2 Ired. 346 ; Hiram v. Pierce, 45 Maine, 367. 



CH. VIII.] MARRIAGES VOIDABLE IN LAW. 141 

sition, that a marriage invalid where it is celebrated is everywhere 
invalid. 1 

21. In England, doubts have been entertained of the validity of 
marriages celebrated in Scotland according to the laws of that coun- 
try, between persons who go there from England to evade the pro- 
visions of the Marriage Act. 2 And in the United States there is a 
reported cape in which it was held that if parties domiciled in one 
State where, under a decree of divorce, they are prohibited from 
marrying again, go into another State for the purpose of evading 
the law of their domicile, and there contract marriage, such marriage 
is void. 3 But this doctrine is opposed by several cases, in which the 
precise contrary was held. 4 In Massachusetts, since the decisions 
referred to in the note were made, the rule has been so modified by 
statute as to conform to the doctrine of the case of Williams" v. 
Oates. 5 

22. To the general rule that marriages good by the laws of the 
country where solemnized are good everywhere, there are some ex- 
ceptions, among which incest and polygamy are regarded as the 
principal. 6 The question, however, as to what marriages are incest- 
uous by the law of nature, is full of difficulty. It is quite certain 
that all marriages between persons in the lineal ascending and de- 
scending degrees of blood relationship, and between brothers and 
sisters in the collateral line, whether of the whole or the half blood, 
are within the prohibition. 7 But connections in the collateral line 
of consanguinity, between relatives further removed than brother 
and sister, are not deemed incestuous by natural law. 8 Another 

1 Bishop, Mar. and Div. \ 132 ; Greenwood v. Curtis, 6 Mass. 358, 378 ; Dalrym- 
ple v. Dalrymple, 2 Hag. Con. R. 54 ; Kent v. Burgess, 11 Sim. 361 ; McCulloch v. 
McCulloch, Ferg. 257. See, also, the cases cited in the preceding note. 

2 Park on Dower, 22 ; Ilderton v. Ilderton, 2 H. Bl. 145 ; Robinson v. Bland, 2 
Burr. 1080, 1 W. Bl. 259; Conway v. Beazley, 3 Hag. Ec. R. (339. But see Compton v. 
Bearcroft, Bull. N. P. 113; and ex parte Hall, 1 Ves. & Bea. 112. 

» Williams v. Oates, 5 Ired. L. (N. C.) 535. 

4 Medway v. Needham, 16 Mass. 157 ; Putnam v. Putnam, 8 Pick. 433 ; Cambridge 
v. Lexington, 1 Pick. 506; Dickson v. Dickson, 1 Yerger, 110. 

5 Ante, ch. 7, \ 15. 

6 Story on Confl. Laws, \ 113, a.; Bishop, Mar. and Div. \ 130. 

» Bishop, Mar. and Div. \ 131; Story, Confl. Laws, \ 114; 2 Kent, Com. 83; 1 
Burge, Col. and For. Laws, 188. i 

8 Sutton v. Warren, 10 Met. 451 ; Wightman v. Wightman, 4 John. Ch. 343 ; Bishop, 
Mar. and Div. \ 181. In a recent English case it was held that where a man domi- 
ciled in England married abroad a sister of his deceased wife, the marriage being 



142 THE LAW OF DOWER. [CH. VIII. 

exception to this rule is where persons destitute of sufficient mental 
capacity enter into a marriage contract abroad. Such a contract, 
if invalid by the law of the domicile, would be so treated at home, 
although deemed valid by the law of the country where it was cele- 
brated. 1 

23. There are also certain exceptions to the general rule that mar- 
riages invalid where celebrated are invalid everywhere. They are 
briefly stated by Mr. Bishop as follows : "First: Cases in which the 
parties cannot contract marriage in accordance with the local law 
where they are. Secondly: Those wherein, on various grounds, a 
local law has sprung up in the foreign country, applicable to sojourn- 
ers from other countries, under which they are married, differing from 
the general lex loci contractds, yet recognized as well by it, as by 
the law of their domicile. To which may be added, Thirdly, The 
case .... of a victorious invading army carrying with it the laws 
of its own country, for the protection of persons within its lines and 
general range of dominion." 2 

good in the country where it was celebrated, could not be recognized as valid in 
England, on the ground that it was incestuous by the laws of God. Brook v. Brook, 
3 Smale & G. 481. See remarks of Mr. Bishop on this case, Bishop on Mar. and 
Div. 3d ed. \ 131, a. See, also, dictum of Lord Brougham in Warrender v. Warrender, 
9 Bligh, 89, 112; S. C. 2 Clark & Fin. 488, 531. 

1 Bishop, Mar. and Div. \ 130; True v. Ranney, 1 Fost. N. H. 52. 

J Bishop, Mar. and Div. \ 133. See, also, Ruding v. Smith, 2 Hag. Con. R. 371 ; 
Rogers' Ec. Law, 652; Kent v. Burgess, 11 Sim. 361 ; Lord Clancurry's case, Cruise 
on Dignities, 276; Lloyd v. Petitjean, 2 Curt. Ec. 251; Calvin's case, 7 Co. 1, 17, b.; 
Campbell v. Hall, Cowp. 204, 209 ; Rex v. Brampton, 10 East, 282, 288 ; Fowler v. 
Smith, 2 Cal. 39; Poynter, Mar. and Div. 289; Woodd. Dig. 238, note ; 1 Burge, Col. 
and For. Laws, 199 ; 2 Roper, Husb. and Wife, 497 ; Shelf. Mar. and Div. 78-87. 



CHAPTER IX. 

ALIENAGE OF THE HUSBAND OR WIFE AS AFFECTING THE EIGHT 

OF DOWER. 



§ 1. Introductory. 
2, 3. Alienage at common law. 

4. Naturalization and denization at 
common law. 

5, 6. Alienage in the United States. 
7-50. In the several States. 

51. In the District of Columbia. 



\ 52. American statutory modifications 
of the common law considered. 

53. Naturalization in the United States. 

54-58. Naturalization in the United 
States prospective only. 

59-61. What persons can not become 
citizens. 



1. In pursuing our inquiries upon that branch of the law which 
relates to the legal capacity of the demandant to take and enjoy the 
estate of dower, and the personal disabilities which, in some instances, 
prevent it from attaching, our work would be but imperfectly per- 
formed, did we omit to notice the disqualification arising from alien- 
age, which, established at a very early date, continues, though in a 
somewhat modified form, to exist in England, and in several of the 
American States. 

Alienage at common law. 

2. An alien is defined, in general terms, to be one who is born out 
of the allegiance of the king or commonwealth. 1 By the common 
law a person laboring under this disability is incapable of acquiring 
title to real property by descent, nor can he acquire any other right 
in lands by title created by mere operation of law. If an alien pur- 
chase land, or if land be devised to him, the general rule is that he 
nfay take and hold the estate until an inquest of office had ; but 
upon his death, it would instantly and of necessity, without any in- 
quest of office, escheat to and vest in the State, because he is incom- 

i Com. Dig. tit. Alien, A.; 1 Inst. sec. 198 ; Wood's Inst. 23 ; Calvin's case, 7 
Co. 16, a.; Ainslie v. Martin, 9 Mass. 454, 459 ; Martin v. Woods, Ibid. 377; Jack- 
son v. Burns, 3 Binney, 75 ; Dawson -o. Godfrey, 4 Cranch, 321 ; Lambert's Lessee 
». Paine, 3 Ibid. 97 f Kelly v. Harrison, 2 John. Cas. 29, 32, note ; 2 Kent, 60. 

(143) 



144 THE LAW OF DOWER. [CH. IX. 

petent to transmit by hereditary descent. 1 The reasons for not ad- 
mitting aliens to the privileges of citizens are thus stated by Lord 
Coke: 1. The secrets of the realm might thereby be discovered. 
2. The revenues of the realm, (the sinews of war, and ornament of 
peace,) should be taken and enjoyed by strangers born. 3. It should 
tend to the destruction of the realm. Which three reasons, he adds, 
do appear in the statute of 2 H. 5 Cap. and 4 H. 5 Cap. 2 

3. As the estate of dower is created by mere operation of law, it 
follows as a natural sequence to the premises above stated, that an 
alien can not take as tenant in dower. Accordingly we find it laid 
down as an established rule in the common law, that "if a man 
taketh an alien to wife and dieth, she shall not be endowed." So, 
also, "if the husband be an alien, the wife shall not be endowed." 3 
This stern rule of the common law was somewhat relaxed, in the time 
of Henry Y., by an act of Parliament, under which alien women who 
from thenceforth should be married to Englishmen by license of the 
king, were enabled to demand their dower after the death of their 
husbands in the same manner as Englishwomen; 4 but the rule in 
England, in other respects, continued without any material change 
until a comparatively recent date. By the statute of 7 & 8 Victoria, 
chapter 66, it is provided that foreign women, married to British 
subjects, shall thereby become naturalized. And as the effect of 
naturalization is to remove the disability resulting from alienage, the 
consequence is that, under this statute, alien women married to Brit- 
ish subjects are not debarred, by reason of their alienage, from the 
enjoyment of the estate of dower. But this act does not appear, 
by its terms, to extend to cases where the husband is an alien and 

1 2 Kent, 53, 54; Calvin's case, 7 Co. 25, a.; 1 Ventr. Rep. 417; Page's case, 5 
Co. 52, a.; Collingwood v. Pace, 1 Sid. Rep. 193; S. C. 1 Lev. Rep. 59; Plowd. Rep. 
229, b. 230, a.; Co. Litt. 2, b.; Fox v. Southack, 12 Mass. 143 ; Fairfax v. Hunter, 
7 Cranch, 603, 619, 620 ; Orr v. Hodgson, 4 Wheat. 453 ; Governeur v. Robertson, 
11 Ibid. 332; University v. Miller, 3 Dev. 192, 196; Montgomery v. Darion, 7 N. H. 
475 ; People v. Folsom, 5 Cal. 373. 

2 Calvin's case, 7 Co. 18, b. 

s Co. Litt. 31, b.; 32, a.; Jenk. Cent. 1, Ca. 2; 2 Saund. 46, n. 5 ; 2 Bl. Com. 
131; 1 Bac. Ab. 135, tit. Aliens; 9 Viner's Ab. 211, tit. Dower, pi. 12; Park on 
Dower, 228, 229; 1 Greenl. Cruise, 173, \\ 29, 30; 2 Kent's Com. 54; 4 Ibid. 36; 
Lambert on Dower, 15; Calvin's case, 7 Co. 25, a. and b.; 1 Ventr. 417; Molloy, 
364; Lord Fairfax's case, 7 Cranch, 629. 

* Co. Litt. by Harg. & Butler, 31, b., n. 9; 1 Thomas' Coke, 572, n. 15; 2 Danv. 
652, pi. 3; 9 Viner's Ab. 210, 211, tit. Dower, pi. 3, 4; Park on Dower, 228 ; 1 Bac. 
Ab. 136, tit. Aliens, note. ■ 



CH. IX.] ALIENAGE AS AFFECTING DOWER. 145 

the wife a subject of the British crown, and as to this class of cases, 
therefore, the rule as stated by Lord Coke remains in substance un- 
changed. 



Effect of naturalization and denization at common law. 

4. To the general rule that an alien was incapable of becoming a 
tenant in dower, the common law annexed the important qualifica- 
tion that naturalization by act of Parliament, or denization by letters 
patent from the king, should remove the disability, and permit the 
estate to attach. 1 According to the principles of the English law, 
if an alien be naturalized by act of Parliament he is put in exactly 
the same condition, except as to eligibility to office, as if he had 
been born in the dominions of the king, and in all respects inherits 
like a natural-born subject. 2 And, under the theory of the English 
constitution, -which confers upon Parliament powers almost omnipo- 
tent in their character, the retrospective energy of an act of natu- 
ralization is such that it relates back to the period of the birth of 
the party, and consequently where an alien wife is naturalized she 
is thereby rendered dowable of all lands of which her husband was 
seized during the coverture, including those conveyed by him before 
her incapacity was removed. 3 But with denization the effect is dif- 
ferent. A denizen occupies a kind of middle state between an alien 
and a natural-born subject, and partakes of the characteristics of 
both.* And although by denization the disability to take as tenant 
in dower is removed, nevertheless the right operates prospectively 
only, and is confined to such lands as were held by the husband at 
the time the wife became a denizen, and such as he may thereafter 
acquire. As to all lands aliened by the husband prior to the deni- 
zation of the wife, no right of dower attaches; "for," says Lord 
Coke, " she was absolutely disabled by the law, and by her birth not 
capable of dower, but her capacity and ability began only by her 



1 Co. Litt. 33, a.; Menvil's case, 13 Co. 23 ; Jenk. Cent. 1, case 2 ; 8 Petered. Abr. 
478; 9 Vin. Ab. 212, pi. 19; Park, Dow. 228. 

2 Co. Litt. 129, a.; 1 Bac. Ab. tit. Alien, b.; 2 Bl. Com. 250; 1 Ibid. 134. 

a Co. Litt. 33, a.; 9 Vin. Abr. 212, pi. 19; 1 Bl. Com. 374, note 21 ; Park, Dow. 
228 ; 1 Greenl. Cruise, 174, \ 30. 
*1 Bl. Com. 374; 11 Co. 67. 

VOL. I. 10 



146 THE LAW OF DOWER. [CH. IX. 

denization." 1 In the United States the general doctrine is, that 
naturalization under the laws of Congress has an effect similar to 
that created in England by denization. It does not possess, in the 
estimation of our courts, the retroactive power attributed to the acts 
of the Parliament of Great Britain. 2 



Alienage as a ground of disability in the United States. 

5. At one period in the history of our country, many interesting 
questions respecting rights of citizenship and of property, growing 
out of the anomalous condition of things produced by the war of the 
Revolution and the recognition of American independence by the 
British government, were presented to our courts for judicial de- 
termination. Thus, in Ainslie v. Martin, 3 a person born in the col- 
onies voluntarily withdrew into other parts of the British dominions 
before our independence was established, and never returned. The 
question afterwards arose whether he was to be considered a subject 
to the State in which he was born, and it was determined in the af- 
firmative, upon the ground that his allegiance accrued to the State 
as the lawful successor of the king. A contrary doctrine had been 
held by the same court in the cases of Gardner v. Wood and Kilham 
v. Ward, 4 and was afterwards asserted in the case of Phipps. 5 The 
view of these earlier cases is also fairly deducible from the discussion 
in Mcllvaine v . Coxe, 6 and Chancellor Kent considers it the more 
reasonable doctrine that no antenatus ever owed allegiance to the 
United States, nor to any individual State, provided he withdrew 
himself from this country before the establishment of our independent 
government, and settled under the king's allegiance in another part 
of his dominions, and never afterwards, prior to the treaty of peace, 
returned and settled here. 7 Where a native of Great Britain, a sol- 



i Menvil's case, 13 Co. 23; Co. Litt. 33, a.; Jenk. Cent. 1, Ca. 2; 8 Petersd. Ab. 
478; 9 Viner's Ab. 212, pi. 19; 1 Bl. Com. 374, n. 21 ; lGreenl. Cruise, 174, g 30; 
Park on Dower, 228. 

* See post, \ 54 et seg. 

5 Ainslie v. Martin, 9 Mass. 454. 

* Gardner v. Wood, 2 Mass. 244, note ; Kilham v. Ward, 2 Mass. 236. 
,.& Case of Phipps, 2 Pick. 394, note. 

« Mcllvaine o. Coxe, 2 Cranch, 280 ; 4 Ibid. 209. 

' 2 Com. 40; Respublica v. Chapman, 1 Dallas, 53; Jackson v. White, 20 John. 
S13 ; Calais v. Marshfield, 30 Maine R. 511 ; see, also, Inglis v. The Trustees of the 
Sailor's Snug Harbor, 3 Peters' U. S. Rep. 99, 122, 123. 



CH. IX.] ALIENAGE AS AFFECTING DOWER. 147 

dier in the British army, deserted from that army during the war of 
the Revolution, and was domiciled in Connecticut at the period of 
the treaty with Great Britain by which the independence of the 
United States was acknowledged, it was held that he thereby became 
a citizen of the United States. 1 These, and questions of a kindred 
character, though invested with much interest at the period when 
they arose, have, in the progress of time, become of but little prac- 
tical importance. The rights of property, as affected by discordant 
claims springing from questions of allegiance to the old government 
or to the new, have been, in a great measure, adjusted. It is very 
rarely, though it sometimes occurs, that a case arises involving the 
consideration of these questions, or any necessity for their determ- 
ination. The provision of the treaty of 1794 between the United 
States and Great Britain, by which British subjects were confirmed 
in the titles which they then held to lands in this country, and as to 
those lands were not to be regarded as aliens, was also temporary in 
its character, inasmuch as it applied only to titles existing at the 
time the treaty was made. At this day it is regarded in a measure 
as obsolete. 2 

6. In the United States an alien is defined to be a person born 
out of the 'jurisdiction and allegiance of the Federal government. 3 
But by act of Congress of February 10th, 1855, . any person born 
out of the limits and jurisdiction of the United States, whose father, 
at the time of the birth of such person, was a citizen of this country, 
shall be deemed and is declared a citizen of the United States. It 
is provided, however, that the rights of citizenship shall not extend 
to any person whose father never resided in the United States. 4 
Congress, by legislation, has provided the mode and directed the 
manner in which aliens may become naturalized, and thereby admit- 
ted to the rights of citizenship. 5 It has also,' to some extent, abro- 
gated the senseless rule of the common law affecting the legal status 
and marital rights of alien women who are married to citizens of the 
United States. But, as a general rule, the rights and privileges of 

1 Hebron v. Colchester, 5 Day, 169. See, upon this subject, 2 Kent's Com. 39-50, 
and note to Kelly v. Harrison, 2 John. Cas. 29, 81. 

» 2 Kent, 69. 

s Ibid. 50 ; see Ainslie v. Martin, 9 MaBS. 454 ; Martin v. Woods, Ibid. 377. 

* 10 Stat. 604, 1 1 ; Brightly's Dig. 132. 

8 See 2 Kent, 51-53, where most of these acts are referred to, and their various 
requirements pointed out and discussed. 



148 THE LAW OF DOWER. [CH. IX. 

aliens within the several States, while they continue to hold that 
relation, particularly with reference to interests in real estate, are 
made the subject of statutory regulations in those States respect- 
ively. It is to these regulations, as well as to some portions of the 
acts of Congress above referred to, and some of the adjudicated cases 
bearing thereon, that it is now proposed to invite the attention of 
the reader. 

7. Arkansas. — By the act of 1837, in force in Arkansas, all aliens 
residing in that State who have made declaration according to law of 
their intention to become citizens of the United States, are made 
capable of taking by deed or will any estate in lands, and of holding, 
aliening, or devising the same; and upon the decease of any alien 
having title to lands according to that act, his estate shall pass and 
descend in the same manner as if he were a citizen of the United 
States ; and it shall be no objection to the husband, widow, or kin- 
dred of such alien, or of any citizen deceased, taking lands by virtue of 
the law regulating the distribution of intestates' estates, that they 
are aliens, if at the time of the death of the intestate they reside 
within the limits of the United States. 1 

The act regulating dower provides that "the widow of an alien 
shall be entitled to dower of the estate of her husband, in the same 
manner as if such alien had been a native-born citizen of this 
State." 2 

8. Alabama. — It has been held in Alabama that the wife of an 
alien, though herself an American citizen, is not dowable of his 
lands. 3 The following provisions are contained in the Code of 
1852:— 

g 1580. When the next of kin of the intestate are incapable of inheriting, 
from alienage, the estate descends to the nearest of kin of the intestate, who is 
a citizen of the United States. 

<j 1591. Any estate, or interest in real property, devised to a person or corpo- 
ration incapable of taking, descends to the nearest of kin capable of taking, or 
if he have no heirs competent to take, to the residuary devisee, if any be named 
in the will capable of holding such estate or interest ; otherwise to the husband 
or wife; otherwise to the State. 

i Rev. Stat. ch. 7, ? 1; Dig. of Stat. (1848,) 149; Dig. of Stat. (1858,) p. 145. 

= Rev. Stat. 1837, ch. 52, £ 2; Dig. of Stat. (1848,) p. 444; Dig. of Stat. (1858,) 
p. 451. 

11 Congregational Church v. Morris, 8 Ala. 182. See, also, Jinkins v. Noel, 3 Stew. 
60 ; Smith v. Zaner, 4 Ala. 99 ; State v. Primrose, 3 Ala. 546 ; Etheridge v. Malempre, 
18 Ala. 565. 



CH. IX.] ALIENAGE AS AFFECTING DOWER. 149 

9. Connecticut. — The Compiled Statutes of 1854 contain the fol- 
lowing provisions : — 

I 6. Any alien who is a resident of this State or of any of the United States, 
may purchase, hold, inherit or transmit real estate in this State, in as full and 
ample a manner as native born citizens ; and the wife of any alien capable of 
holding land in this State, may take and hold land in this State by devise or 
inheritance, and shall be entitled to dower in the land of her deceased husband ; 
and the children and other lineal descendants of any person capable of holding 
lands in this State, may take and hold such land as heirs at law of such ancestor. 

\ 7. All conveyances and transfers of real estate, or of any interest therein, 
by deed, devise or otherwise, heretofore made to any foreigner not authorized 
by law to hold real estate, and all conveyances and transfers of the same by 
such foreigner, are confirmed to such foreigner, his heirs or assigns, and made 
effectual to all intents and purposes, as though such foreigner had been a native 
born citizen. 1 

10. California. — By the constitution of California, foreigners who 
are bona fide residents of the State may enjoy the same rights in 
respect to the possession, enjoyment, and inheritance of property as 
native-born citizens. 2 By the act of April 19, 1856, aliens are per- 
mitted to inherit and hold by descent in as full a manner as 
though they were native-born citizens of the State or of the United 
States; provided, that no non-resident foreigner shall take and 
enjoy any real estate within the limits of the State after five years 
from the time he shall inherit the same ; but in case he do not appear 
or claim the estate within that period, then it shall be sold, and the 
proceeds held for the benefit of the non-resident or his legal repre- 
sentatives, to be paid within five years thereafter upon demand, 
and the production of satisfactory evidence of his or their right 
thereto. In the event that no proper claim to the fund is made 
within the extended term of five years, it becomes the property of 
the State. 3 

11. Delaware. — By the Revised Code of 1852, aliens are permit- 

1 Comp. Stat. Conn. 1854, p. 630. For former laws, see Stat. Conn. 1838, p. 287; 
Eev. Stat. 1849, tit. 29, ch. 1, jj 6. In Sistare v. Sistare, 2 Root, 468, decided in 
1796, dower was refused to the alien widow of a naturalized foreigner who had died 
intestate ; but the decision was placed upon the ground that she was willfully absent 
from him without his consent, she having remained in a foreign country. See, also, 
Whiting v. Stevens, 4 Conn. 44. 

2 Art. 1, \ 17. 

3 Wood's Cal. Dig. 427, Art. 2366. See Ramires v. Kent, 2 Cal. 558 ; People v. 
Folsom, 5 Cal. 373 ; Siemmessen v. Bofer, 6 Cal. 250 ; Farrell v. Enright, 12 Cal. 
450; State v. Rogers, 13 Cal. 159. 



150 t THE LAW OF DOWER. [CH. IX. 

ted to purchase and hold real estate after having made a declaration 
of their intention to become citizens. So, also, they may take by 
descent, provided they are residents of the United States at the 
death of the intestate ; and an alien widow residing in the United 
States at the death of her husband is entitled to dower. 1 The fore- 
going provisions are made retrospective to January 22, 1811. 2 

12. Florida. — Aliens of any country or nation whatever may pur- 
chase, hold, sell, convey, or devise any lands and tenements in this 
State, to the same extent and with the same right as citizens of the 
United States. In making title by descent, it shall be no bar to a 
party that any ancestor, through whom he derives his descent from 
the intestate, is or hath been an alien. 3 

13. G-eorgia. — Any adult male alien resident of the State, who 
has given notice of his intention to become a citizen of the United 
States according to the acts of Congress, is authorized to receive, 
purchase, and hold real estate as fully and completely as if he were 
a citizen of the United States, and after he shall have become a citi- 
zen by taking the oath of allegiance in the manner prescribed by the 
acts of Congress, he is authorized to convey, devise, or mortgage his 
real estate, or any part thereof. 4 Adult female aliens and minor 
aliens "becoming residents of the State, are authorized to receive, 
purchase, and hold real estate ; and the former may convey, devise, 
or mortgage the same without restriction, and with the same powers 
as to the disposal thereof, as males when they become citizens of the 
United States. 6 In case of the death of any male alien before per- 
fecting his right to citizenship, his real estate does not escheat, but 
is to be disposed of according to the provisions of the statute relating 
to the devise or descent of land to aliens. 6 

14. Illinois. — Aliens may acquire, hold, and dispose of real estate, 
and transmit the same by descent, in this State, precisely as natural- 
born citizens of the State or of the United States may do. 7 It is 
also provided that " the widow of an alien shall be entitled to dower 



i Rev. Code 1852, ch. 81, § 1. * Ibid, g 2. 

» Acts of Nov. 17, 1829, and February 17, 1833 ; Thompson's Dig. p. 190. 

* Act of Dec. 21, 1849, \ 1 ; Cobb's New Dig. 367. 
s Act of Dec. 21, 1849, \ 2 ; Cobb's New Dig. 368. 

• Ibid. \ 3. For the law referred to in this section, see Cobb's New Dig. 253 ; 
Act of Dec. 15, 1810. 

' Act of Feb. 17, 1851; 2 Stat. 111. (1858,) p. 815. 



CH. IX.] ALIENAGE AS AFFECTING DOWEE. 151 

of the estate of her husband in the same manner as if such alien had 
been a native-born citizen of the United States." 1 

15. Indiana. — The Revised Statutes of 1852 provide that 

No person except a citizen of the United States, or an alien who shall be at 
the time a bona fide resident of the United States, shall take, hold, convey, de- 
vise, or pass by descent, lands, except in such cases of descent or devise as are 
provided for by law. 

Sec. 3. No title of any resident inhabitant of this State, who was in actual 
possession of any lands on the first day of November, one thousand eight hun- 
dred and fifty- one, or at any time previous, nor of any person holding under such 
resident, shall be defeated or prejudiced on account of his own alienism, or the 
alienism of any other person through whom his title may have been derived. 2 

A further provision declares that "the alienage of any woman 
shall not bar her right to one third of her husband's lands, if her 
husband was a citizen of the United States, or if, being an alien, he 
had complied with the laws of this State to entitle him to hold 
lands." 3 

16. Iowa. — The constitution of 1857 contains the following pro- 
vision : — 

Foreigners who are, or may hereafter become residents of this State, shall 
enjoy the same rights in respect to the possession, enjoyment, and descent of 
property, as native born citizens. 1 

By the act of March 15, 1858, aliens residing in the United States 
who have declared their intention to become citizens, and aliens resi- 
dent in the State, are capable of acquiring real estate by descent or 
purchase, and of holding and alienating the same, as if they were 
citizens. Aliens may also take by devise or descent from any per- 
son capable at the time of his death of holding lands in the State. 
So, also, they may purchase lands from any person authorized to 
hold the same at the time of such purchase ; but they must sell and 
convey such lands within ten years from the date of the purchase, or 
the taking effect of the enactment, to some person capable of acquir- 
ing and holding absolute title to real estate. The act contains a 
saving as to previous acquisitions. It is also provided that every 

i Act of March 3, 1845, 1 Purple's Dig. p. 494, ch. 2, j! 2; 1 Stat, of 111. (1858,) 
p. 151 ; see Sisk v. Smith, 1 Gilm. 513. 
2 1 Rev. Stat. 1852, p. 232, \\ 1, 3. 

* 1 Rev. Stat. 1852, p. 255, \ 43. For the former law, see Rev. St. 1843, p. 414 ; 
and p. 431, ch. 28, \ 105. See, also, Doe v. Lazerly, 1 Carter, 234 ; Eldon v. Doe, 
6 Blackf. 341 ; State v. Blackmo, 8 Blackf. 246. 

* Const. 1857, Art. 1, \ 22. 



152 THE LAW OF DOWER. [CH. IX. 

married woman whose husband dies, capable at the time of his death 
of acquiring and holding an absolute title to real estate, though she 
be an alien, shall be entitled to the same rights of dower as if she 
were a resident of the State. If a citizen dispose of his property 
by will to an alien non-resident, and subsequently to the making of 
the will the latter becomes a resident, the devise or bequest becomes 
operative. 1 

17. Kentucky. — In Hunt v. Warnicke, 2 it was held that under the 
ordinance of Virginia of 1776 the common law of England relating 
to aliens was in force in Kentucky. In Fry v. Smith, decided in 
1834, it was held that lands in that State do not pass by descent to 
heirs who are aliens, but vest in the Commonwealth without office 
found. 3 The case of Alsberry v. Hawkins,* determined in 1839, 
presented a question of more than ordinary interest. The facts 
were as follows : Thomas Alsberry, and Leah his wife, once citizens 
of Kentucky, emigrated in 1824 to the province of Texas, where he 
died in 1826, and where she continued to reside until 1836, when 
she returned to Kentucky for temporary purposes, intending to go 
back to Texas as her home. A short time after her arrival in Ken- 
tucky she instituted proceedings for dower in lands which had been 
purchased from her deceased husband during the coverture, and prior 
to their removal to Texas. Her claim was resisted, chiefly on the 
ground that she had ceased to be a citizen of Kentucky, and of the 
United States, which she denied, though she had sued as a non-resi- 
dent. It was decided that as to non-resident aliens the common law 
of England was in force in the State : That an American citizen 
had a right to emigrate, and renounce his allegiance to the govern- 
ment of the Union, and of the State: That whenever this right has 
been exercised, it is presumed to have been done with the concur- 
rence of both governments, though without the express sanction of 
either : That the facts of the case, unexplained, were sufficient to 
authorize the presumption that Mr. and Mrs. Alsberry had ceased 
\o be citizens of Kentucky, and become in fact and in law citizens 
of Texas, in accordance with the laws of that province : That it de- 

i Act of March 15, 1858 ; Iowa Kev. Laws, (I860,) p. 421, \l 2488-2493. See 
Stemple v. Herminghouser, 3 Iowa, 408. 

2 Hunt i). Warnicke, Hard. 61. 

s Fry v. Smith, 2 Dana, 39. See, also, Dudley v. Grayson, 6 Mon. 260 ; Stevenson 
v. Dunlap, 7 Mon. 143. 

* Alsberry v. Hawkins, 9 Dana, 177. 



CH. IS.] ALIENAGE AS AFFECTING DOWER. 153 

'/ 

volved upon the demandant to repel this presumption by explanatory 
evidence, and in the absence of such evidence, she was adjudged an 
alien at the time of her husband's death, and consequently not 
entitled to dower. 1 

The doctrine of the right of voluntary expatriation without the 
express consent of the government, recognized in this case, is gener- 
ally denied in the United States. 2 

18. By an act passed in 1800, any alien other than an alien enemy, 
who had actually resided in the State two years, was enabled to re- 
ceive, hold, and pass any right or title to land during the continuance 
of his residence after that period. 3 But in order to avail himself of 
the benefits of this act, the alien was required to be an actual resi- 
dent of the State at the time his right accrued. 4 A similar statute 
is still in force in Kentucky. 8 And it is further provided that any 
alien, being a free white person, who has purchased, or contracted 
to purchase any real estate, or who has any title thereto, and who 
shall become a citizen of the United States before the same is 
escheated by a proper procedure ; and where any such person having 
title to lands shall sell, lease, or devise the same, or die seized or 
possessed thereof before any proceeding is instituted for the purpose 
of escheating the same, such person in the first case, and in the 
second, the purchaser, lessee, heir, or devisee from him, if a citizen 
of the United States, shall take and hold the same discharged from 
any claim of the State by reason of the alienage of such person. 
Any woman whose husband is a citizen of the United States, and 
any person whose father or mother at the time of his birth was a 
citizen of the United States, although born out of the United States, 
may take and hold real or personal estate, by devise, purchase, de- 
scent, or distribution. An alien, the subject or citizen of a friendly 
State, may take and hold any personal property, except chattels real ; 
or if he reside within the State, may take and hold lands for the pur- 
poses of residence or occupation by him or his servants, or for the 



1 A similar point was involved in Moore v. Tisdale, 6 B. Mon. 352, and it was 
there held that a wife is not concluded by the election of her husband to become a 
subject of another government, but that after his death she may return and resume 
her rights of citizenship. 

2 2 Kent, 43; Brightly's Dig. 33, note. See, also, Brooks v. Clay, 3 A. K. Marsh. 549. 
> White v. White, 2 Met. (Ky.) 185 ; Trustees v. Gray, 1 Litt. 149. See Dudley v. 

Grayson, 6 Mon. 260. 
* White v. White, 2 Met. (Ky.) 185. 5 1 Stant. Rev. 239, Art. 3, g 1. 



154 THE LAW OP DOWER. [CH. IX. 

purposes of any business, trade, or manufacture, for a term not ex- 
ceeding twenty-one years ; and he shall have the like rights, reme- 
dies, and exemptions touching such property, as if he were a citizen 
of the United States. 1 

19. Kansas. — By the constitution of Kansas 

No distinction shall ever be made between citizens and aliens in reference to 
the purchase, enjoyment, or descent of property. 2 

20. Louisiana. — In this State the common law disability as to 
aliens is substantially removed. They may inherit real estate, and 
transmit it ah intestato. 3 

21. Massachusetts. — The early Massachusetts cases fully recog- 
nize the common law disability of alienage. In Sewall v. Lee 4 it 
was held that neither the widow of an alien nor the alien widow of a 
citizen could be endowed of her husband's lands. 6 But by degrees 
this disability has been completely removed. The act of 1812 gave 
dower to the alien widow of a citizen of the United States, saving, 
however, the rights of purchasers in lands conveyed before the pas- 
sage of the act. 6 The revised statutes of 1836 provided that "the 
alienage of any woman shall not bar her right of dower excepting as 
to lands conveyed by her husband, or taken from him by execution 
before the twenty-third day of February, in the year one thousand 
eight hundred and thirteen." 7 The enactment now in force is as 
follows : — 

Aliens may take, hold, transmit, and convey real estate ; and no title to real 
estate shall be invalid on account of the alienage of any former owner, but 
nothing contained in this section shall defeat the title to any real estate hereto- 
fore released or conveyed by the commonwealth, or by authority thereof. 8 

22. Maine. — By the revised statutes of 1857 

An alien may take, hold, convey, and devise, real- estate or any interest 



1 1 Stant. Ky. Stat. p. 239, Art. 8, \\ 2-4. 

2 Const. Kan. 1859, Bill of Rights, \ 17. 

3 Christy's Dig. tit. Alien ; Phillips v. Rogers, 5 Martin's La. Rep. 700 ; Duke of 
Richmond v. Miln, 17 Louis. 312; 2 Kent, 54, note, and 70. 

* Sewall v, Lee, 9 Mass. 363. 

6 See, also, Sheaffe v. O'Neil, 1 Mass. 256 ; Fox v. Southack, 12 Mass. 143 ; Sean- 
Ian v. Wright, 13 Pick. 523 ; Slater v. Nason, 15 Pick. 345 ; Foss v. Crisp, 20 Pick. 
121 ; Piper v. Richardson, 9 Met. 155. 

s 2 Mass. Laws, p. 324; Acts of 1812, ch. 93, \\ 1, 2. 

' Rev. Stat. 1836, p. 411, ch. 60, \ 14. 

s Stat. 1852, ch. 29; Gen. Stat. Mass. (I860,) p. 473, \ 38. 



CH. IX.] ALIENAGE AS AFFECTING DOWER. 155 

therein. All conveyances and devises of such estate or interest, already made 
by or to an alien, are confirmed and made valid. 1 

The act regulating dower contains the following provision : — 

The widow of a citizen of the United States who was an alien when she mar- 
ried him shall be entitled to dower in her husband's estate which was not con- 
veyed by him, or taken from him by execution prior to the twenty-third day of 
February, eighteen hundred and thirteen. 2 

23. Maryland. — The rule of the common law, formerly prevailing 
in Maryland, 3 , is now considerably modified by statute. By the act 
of 1813, alien females intermarried with citizens of the United States, 
and residing therein, became entitled to dower. 4 It was held, how- 
ever, that this act did not apply to alien women who had never 
resided in the United States during their coverture, but was limited 
to resident aliens only. 5 By the present statute, aliens, actual resi- 
dents of the State, may take and hold lands acquired by purchase, 
or to which they would, if citizens, be entitled by descent, and may 
sell and dispose of the same ; provided, that if any male alien acquires 
any interest in real estate, he shall, within one year thereafter, de- 
clare his intention of becoming a citizen according to the laws of the 
United States, and shall also, within twelve months after his being 
capable of becoming a citizen, naturalize himself agreeably to said 
laws. If any male alien shall die within one year after acquiring 
any real estate without making such declaration, or having made the 
declaration, if he die within the term prescribed for his becoming a 
citizen, and without having disposed of his real estate, then it shall 
descend to his heirs as if he had been a citizen at the time of his 
death; provided, that such heirs, being male aliens, shall comply 
with the foregoing provisions. If any alien makes sale of any real 
estate before becoming naturalized, and after the sale refuses or 
neglects to become naturalized, the sale shall nevertheless be valid. 
The heirs of any alien may hold the real estate of such alien in the 

i Rev. Stat. 1857, p. 449, ch. 73, \ 2 ; Laws 1856, ch. 198. 

2 Rev. Stat. 1857, p. 605, ch. 103, <S 7 ; Rev. St. 1840-1, p. 392, ch. 95, \ 7. For 
former laws, see "Laws of Maine," (1821,) vol. i. p. 150, \ 4; Rev. Stat. 1840-1, 
ch. 91, \\1, 3; Ibid. oh. 93, \\ 6-7. See, also, Mussey v. Pierre, 11 Shep. 659; 
Potter v. Titcomb, 22 Maine, 300. 

3 McCreery v. Allender, 4 Har. & McH. 409 ; McCreery v. Somerville, 9 Wheat. 
354 ; Owings v. Norwood, 2 Har. & J. 96. 

* Md. Stat. 1813, ch. 100; Laws of Maryl. vol. vi.; 3 Dorsey, p. 2621. 

* Buchanon v. Deshon, 1 Harr. & Gill, 280. 



156 THE LAW OF DOWER. [CH. IX. 

same manner that natural-born citizens are entitled to hold real 
estate, provided they proceed to comply with the provisions of the 
law relating to naturalization. Any free white female born without 
the United States, who has married a citizen of the United States, 
and actually resides therein after marriage, is entitled to acquire, 
hold, and dispose of real estate as fully and amply as if she were a 
native citizen. 1 

24. Missouri. — Under the act of 1820, the widow of a resident 
alien who had declared his intention to become a citizen of the United 
States, was held entitled to dower. 2 The act of 1845 contains similar 
provisions : 

All aliens residing in the United States, who shall have made a declaration 
of their intention to become citizens of the United States by taking the oath 
required by law, and all alien residents in this State, shall be capable of ac- 
quiring real estate in this State by descent or purchase, and of holding and 
alienating the same, and shall incur the like duties and liabilities in relation 
thereto as if they were citizens of the United States. 3 

25. Michigan. — The constitution of 1850 provides as follows: — 

Aliens who are, or who may hereafter become bona fide residents of this State, 
shall enjoy the same rights in respect to the possession, enjoyment, and inherit- 
ance of property, as native born citizens. 4 

By the statutes in force, any alien may acquire and hold lands by 
purchase, devise, or descent; and he may convey, mortgage, or de- 
vise the same ; and if he die intestate the same descends to his heirs, 
in like manner as if he were a native citizen of the State, or of the 
United States. The title to any lands granted before the passage 
of the act shall not be questioned, nor in any manner affected by 
reason of the alienage of any person from or through whom the title 
is derived. 5 An alien woman is not on that account barred of her 
dower, and any woman residing out of the State is dowable of the 
lands of which her husband died seized, in like manner as if she and 
her husband had resided in the State at the time of his death. 6 

i Maryl. Code, (I860,) p. 18, Art. iv. \\ 1-8. For the statute of 1814, see 1 D'orsey, 
625, oh. 79. 

2 Act of Dee. 6, 1820; Stokes v. Fallon, 2 Misso. 32. 

s Rev. Stat. 1845, p. 113, ch. 6, \ 1. 

* Const. 1850, Art. 18, \ 13. 

» 2 Comp. L. Mich. p. 857, ch. 90, \\ 35, 36; Rev. Stat. Mich. (1837-8,) p. 266, 
\l 26, 27 ; Rev. Stat. 1827, p. 272. 

6 2 Comp. L. Mich p. 853, ch. 89, \ 21. See Rev. Stat. 1837-8, p. 265, \ 15 ; 
Territorial act of March 31, 1827. 



CH. IX.] ALIENAGE AS AFFECTING DOWER. 157 

26. Mississippi. — Aliens residing in this State may acquire and 
hold real estate therein by purchase, gift, devise, or inheritance, and 
may, after they have been naturalized according to the laws of the 
United States, convey the same as other citizens. If an alien resi- 
dent of the State dies seized or possessed of lands, the same shall, if 
he has been naturalized, descend to his heirs according to the laws 
of descent ; but if he die without having been naturalized, then the 
lands shall be sold as an escheat, and the money arising therefrom 
paid into the treasury of the State, subject to the claim of the heirs 
of the decedent, provided they apply therefor within six years there- 
after. 1 

27. Minnesota. — Any alien may acquire and hold lands by pur- 
chase, devise, or descent ; and he may convey, mortgage, and devise 
the same, and if he die intestate, his lands shall descend to his heirs 
in like manner as if he were a native citizen of the State, or of the 
United States. 2 Alienage is no impediment to dower ; and any widow, 
non-resident of the State is dowable of lands lying within the State 
in the same manner as if she and her husband had been residents at 
the time of his death. 3 

28. New York. — In this State the first reported case in which the 
question as to the effect of alienage upon the right of dower was pre- 
sented, is that of Kelly v. Harrison. 4 It was originally tried in 1799 
— was not affected by any local legislation, but was determined solely 
upon the application of the principles of the common law. The case 
was this : Kelly, a native of Ireland, removed to New York, in 1760, 
where he continued to reside until his death, in 1798. He left a 
wife in Ireland at the time he removed from that country, having 
been married in 1750. His wife was a native of Ireland, and never 
left the country, but remained there down to the period of his death. 
After the death of Kelly, proceedings were instituted by the widow, 
in the courts of New York, to recover dower in the lands of which 
he died seized in that State, and the claim was resisted upon the 
ground that she was an alien, and therefore not entitled to dower. 
It was held by the court, that as to the lands of which her husband 
was seized prior to the 4th of July, 1776, she was entitled to dower, 



i Rev. Code Missis. (1857,) pp. 306, 320, ch. 36, sec. 9, Art. 65, 66; Act of March 
12, 1856. 
2 Rev. Stat. 1858, p. 411, g 35. « Ibid. p. 409, \ 21. 

4 Kelly v. Harrison, 2 John. Cas. 29. 



158 THE LAW OF DOWER. [CH. IX. 

but not as to lands acquired after that period. This decision was 
put upon the ground that the demandant by her intermarriage with 
the deceased, had, previous to the Revolution, acquired a right, in 
the event of his death, to be endowed of the estate of which he was 
then seized. And it was said that the right thus far acquired, though 
dependent on the contingency of her surviving him, ought not to be 
impaired by the circumstance that a revolution intervened before the 
contingency happened. The court further held, under the facts 
shown in the case, that at the Revolution the demandant became an 
alien, and her husband an American citizen, and as to lands ac- 
quired after that period, they applied the general principle incapaci- 
tating aliens from taking a dower estate. This distinction was based 
upon the ruling in Calvin's case, 1 where it was determined that the 
division of an empire works no forfeiture of a right previously ac- 
quired. The court remarked that had the case been silent as to the 
continued residence of the widow abroad, it might have been pre- 
sumed that her condition followed that of her husband, but as it was 
expressly stated to the contrary, they could make no such presump- 
tion. They also considered the effect of the ninth article of the 
treaty of amity concluded with Great Britain in 1794, but were of 
opinion that it did not reach the case, inasmuch as it merely permit- 
ted the subjects and citizens of either nation, holding lands in the 
territories of the other, to sell, devise, and dispose of such lands at 
pleasure. This language was construed to refer solely to rights that 
were vested and complete, and not to a contingent right of dower. 

29. An act was passed by the legislature of New York, on the 
26th of March, 1802, by which it was provided that all purchases of 
lands made or to be made by any alien who had come into that State 
and become an inhabitant thereof, should be deemed valid to vest the 
estate to him granted ; and it was made lawful for such alien to dis- 
pose of and hold the same to his heirs or assigns forever. But 
the right to make any purchase of land thereafter was limited to one 
thousand acres. 2 On the 8th of April, 1808, a second act was passed, 
by which the foregoing provisions were extended to all aliens who 
had come into the State and become inhabitants thereof at the close 
of the then session of the legislature. It was further enacted 
thereby that all persons authorized to purchase real estate, either by 

i Calvin's case, 7 Co. 27, b.; Kirby's Rep. 143. 
1 2 R. L. p. 541 ; 3 Rev. Stat. p. 343. 



CH. IX.] ALIENAGE AS AFFECTING DOWER. 159 

the original or the amendatory act, might also take and acquire by 
devise or descent. 1 In the case of Sutliff v. Forgey, 2 which afterwards 
exercised a controlling influence in the courts of New York, a ques- 
tion as to the proper construction of these statutes, with reference to 
the right of dower, was made and determined. The demandant for 
dower, Sarah Sutliff, with her husband, Richard Sutliff, both of whom 
were aliens, came to the State of New York on the 21st day of July, 
1786, with the intention of becoming citizens thereof. They resided 
within the limits of the State until the death of the husband, which 
took place in November, 1830. During his lifetime, and on the 
29th day of August, 1803, he was duly naturalized according 
to the requirements of the act of Congress then in force ; and in 
January, 1804, had purchased and become seized of the premises, 
not exceeding one thousand acres, of which dower was demanded. 
Upon these facts two questions arose : 1. "Whether the naturalization 
of the husband removed the disability of the wife. 2. Whether the 
acts of 1802 and 1808, by proper construction, embraced the acqui- 
sition of a contingent estate of dower. The first question was an- 
swered in the negative ; the second was determined in the affirmative, 
and dower was awarded to the demandant. The difficulty arising 
upon the last point was owing to the fact that the two statutes taken 
together authorized lands to be acquired only by purchase, devise, 
or descent, which words, it was admitted, did not include the claim 
of dower. But it was held that the purchase by the husband inured to 
the benefit of the wife within the equity and spirit of the law. " The 
demandant," said Woodworth, J., " was authorized to purchase, but 
a purchase can not be effected by her except through the medium of 
her husband. The act must have intended this mode of acquiring, 
or, as to her, it becomes a dead letter. The intention of the legis- 
lature was to encourage aliens to settle in this State by removing 
the disability of alienism. The property purchased is secured to the 
alien purchaser, his heirs and assigns ; he is allowed to take by de- 
vise or descent. The claim of dower was entitled to equal favor, 

and no doubt it was intended by the act to protect it The 

right to dower is an interest in lands. When the conveyance was 
made to the husband, in 1804, this interest was contingent, it is 
true, but it was a right known and recognized by the law, and be- 



i 2 R. L. p. 543 ; 3 ReY. Stat. 344. 
2 Sutliff v. Forgey, 1 Cowen's Rep. 89. 



160 THE LAW OF DOWER. [CH. IX. 

came absolute on the death of the husband It cannot, I 

think, on any principle of sound construction, be said that the de- 
mandant is not a purchaser of this right of dower as clearly as that 
her husband became seized of the fee. The deed to the husband 
necessarily inured to the benefit of the wife so far as to secure to her 
such right in the premises as she would have taken had she not been 
an alien." The judgment was affirmed in the Court of Errors, on 
proceedings instituted by the defendant below. 1 

30. The legislature of New York made some further general sta- 
tute regulations on this subject in 1825. In that year an act was 
passed by which it was provided that any alien who should make and 
file a deposition before any officer authorized to take the proof of 
deeds, that he was a resident in said State, and intended always to 
reside in the United States, and become a citizen thereof as soon 
as he could be naturalized, and that he had taken such incipient 
measures as the laws of the United States required to enable him to 
obtain naturalization, should thereupon be authorized and enabled 
to take and hold lands, and real estate of any kind whatsoever, to 
him, his heirs and assigns forever; and might, during six years 
thereafter, sell, assign, mortgage, devise and dispose of the same, in 
any manner as he might or could do if he were a native citizen of 
said State, or of the United States, except that he should have no 
power to lease or demise any real estate which he might take or hold 
by virtue of said provision until he became naturalized. It was fur- 
ther declared that such alien should not be capable of taking or 
holding any real estate which might have descended, or been devised 
or conveyed to him previously to his having become such resident, 
and made the deposition aforesaid. 2 An act was also passed by 
which it was declared that every devise of any interest in real prop- 
erty to a person who, at the time of the death of the testator, 
should be an alien, not authorized by statute to hold real estate, 
should be void. 3 On the 15th of April, 1830, still another act 
was passed, giving to any resident alien who had purchased and 
taken a conveyance for any lands within the State, before making 
the deposition required by the statute first above mentioned, the 
right to hold in the same manner as if such deposition had been 

1 Forgey v. Sutliff, 5 Cowen's Rep. 713. 
^ 1 Rev. St. 720, \\ 15, 16, 17. 
s 2 Rev. St. 57, \ 4. 



CH. IX.J ALIENAGE AS AFFECTING DOWER. 161 

made, provided such deposition should be made within one year 
thereafter. 1 

81. In the case of Mick v. Mick, 2 the force and effect of the fore- 
going provisions were discussed and settled, to some extent, by the 
Supreme Court of the State. The action was ejectment, brought 
by the plaintiff to recover an equal undivided ninth part of certain 
lands of which his father died seized. The defendant was the step- 
mother of the plaintiff. She was born in Ireland, emigrated to this 
country in the year 1829, and, about twelve years before the com- 
mencement of the action, was married to the father of the plaintiff, 
who was a native-born citizen of this country. In 1823 the husband 
received a conveyance of the lands in question ; in March, 1830, he 
made his last will and testament, devising his farm to the defendant, 
and in May of the same year died. In the following month of June 
the defendant made a deposition in due form, before a proper tribu- 
nal, of her residence, and desire to be naturalized, and received a 
certificate of naturalization. Upon this evidence the defendant 
claimed that she was entitled to hold the land under the devise to 
her, and that at all events she could not be dispossessed of one-third 
thereof, being entitled to hold so much as her dower. The case 
was ruled against her upon both points. Not having been natural- 
ized at the death of her husband, she was excluded from the benefit 
of the devise, by reason of the enactment referred to in the preceding 
section, making void every devise of any interest in real property to 
a person who, at the death of the testator, should be an alien, not 
authorized by statute to hold real estate, which changed the rule of 
the common law in so far as it permitted an alien to take by devise 
and hold until office found. It was also held that she could not take 
as devisee by virtue of section 15 of 1 Rev. Statutes, 720, for the 
reason that no deposition had been filed by her previous to her hus- 
band's death. Also that she was not aided by the act of 1830, al- 
though she had filed her deposition within a year after the death of 
her husband, because that act related to lands obtained by deed. 
"During the husband's lifetime," observed the court, "the estate 
was in him ; when he died, it passed from him. At that moment 
she had clearly no capacity to take. She was not then authorized 

i 3 Rev. St. 2d ed. pp. 227, 229. 
2 Mick v. Mick, 10 Wend. Rep. 379. 

VOL. I. 11 



162 THE LAW OF DOWER. [CH. IS. 

by any statute to hold real estate. The estate vested somewhere ; 
it could not then vest in her, for by the 2 R. S. 57, § 4, the devise 
to her was void. The estate then vested in the heirs at law. This 
took place upon the death of her husband, on the 14th of May, 1830. 
The defendant did not file the deposition required until June after- 
wards, and that act could not divest an estate already vested by 
operation of law. Had she filed the deposition before the death of 
her husband, the devise would have been good. The act of 1830 
can only relate to those cases where an alien may take and hold 
until oflice found, as by deed ; and it would be so by devise, too, but 
for the clause above referred to, rendering a devise void unless the 
devisee had authority by statute to take and hold real estate." In 
regard to the claim for dower, it was decided that the defendant 
could derive no benefit from the acts of 1802 and 1808 ;* first, be- 
cause she was not an inhabitant of the State in 1808, and, secondly, 
because her husband, being a natural-born citizen, did not make the 
purchase by virtue of these statutes. And while conceding the case 
of Sutliff v. Forgey 2 to have been correctly decided, a distinction was 
taken between the case of an alien widow of a resident alien who had 
purchased lands under the enabling acts, and of an alien widow of a 
native-born citizen, in favor of the former. " The legislature," re- 
marked the court, " in all their liberality to resident aliens, have 
never made any provision for the alien widow of a natural-born citi- 
zen. She is, and always has been excluded, by the common law, 
from dower in the lands of her husband ; no statute has ever been 
passed ameliorating the common law in her behalf." 

32. In the case of Priest v. Cummings, 3 the Supreme Court ad- 
judged that the alien widow of a native-born citizen was entitled to 
dower in lands held by her husband during the coverture, provided 
she were an inhabitant of the State at the passage of the act of 1802* 
enabling aliens to purchase and hold real estate ; and the doctrine 
of the case of Mick v. Mick, so far as it maintained the contrary, was 
denied to be law. The reasoning of Nelson, J., upon this point, is as 
follows : " It was insisted, upon the argument," he said, " by the coun- 
sel for the plaintiff below, that the principle adjudged in the case of 
Sutliff v. Forgey, 1 Cowen, 89, affirmed in error, 5 Id. 713, was con- 
clusive in her favor ; and, after the most attentive consideration, I 

i See ante, \ 29. 2 Sutliff v. Forgey, 1 Cowen's R. 89 ; ante, § 29. 

s Priest v. Cummings, 16 Wend. 617. 4 Ante, <5 29. 



CH. IX.] ALIENAGE AS AFFECTING DOWER. N 163 

can not but think it is so. There, the husband had been naturalized 
on the 29th of August, 1803, and made the purchase on the 4th of 
January, 1804, the wife, the demandant, at the time being an alien, 
and continuing so until the commencement of the suit. The natu- 
ralization of the husband placed him upon the footing, in respect to 
the acquiring and holding real estate, of a natural- born citizen. 
1 Black. Com. 374 ; Bac. Abr. tit. Aliens, 129 ; 1 Inst. 89 ; 1 Cowen, 
95. The position was there taken by the counsel for the demandant, 
that the naturalization of the husband operated to naturalize the 
wife ; but this was denied by the court. And as judgment was given 
for her, notwithstanding, it would seem to follow, as a principle 
necessarily deducible from the case, that an alien widow of a natural- 
born citizen would be entitled to her dower under like circumstances, 
because, if entitled to dower in an estate purchased by the husband 
after naturalization, as he stands precisely upon the footing of a 
natural-born citizen, the dower of the alien widow of the latter can 
not consistently be denied. After naturalization, the enabling stat- 
utes were no way material or connected with the purchase, which 
was made by virtue of the authority derived from citizenship, as in 
the case of a natural-born citizen." The right of the widow to dower 
was placed exclusively upon the enabling acts of 1802 and 1808. 1 
The demandant was proved to have been an inhabitant of the State 
before the passage of either of those acts ; to have been naturalized 
in October, 1829, and to have continued her residence in the State 
until the death of her husband in 1832. The lands in which dower 
was demanded had been conveyed to the husband in 1796, before the 
marriage, which took place in January, 1802. The premises had 
been conveyed by mortgage executed in June, 1802, under which 
proceedings in foreclosure were had, and the premises sold in June, 
1804. The wife joined in the execution of the mortgage, but being 
a minor at the time, she was held not to be bound thereby. The 
court were of opinion that, on the above state of facts, the demand- 
ant, by virtue of the enabling acts above mentioned, possessed, dur- 
ing the coverture, capacity to take and hold lands ; that the husband, 
being a natural-born citizen, was invested with the same capacity, 
independently of those enactments, and, in that particular, occupied 
the same position as a naturalized citizen or an alien resident who 
was within the acts ; that by reason of the concurring capacity on 

1 See ante, \ 29. 



164 THE LAW OP DOWER. [CH. IX. 

the part of both husband and wife to take and hold lands during the 
coverture, the seizin of the husband inured, under the act of 1802, 
to the benefit of the wife. For these reasons the Supreme Court, 
conceiving the case to be within the doctrine of Sutliff v. Forgey, 
granted the petition for dower. The naturalization of the wife in 
1829 was held not to affect the question, upon the ground that it 
could not have a retroactive effect. 1 

33. The case, however, went to the Court of Errors, and there the 
judgment of the court below was reversed. 2 The Court of Errors 
held that the act of 1802 had no application to cases where, as in 
the one before them, the lands in which dower was claimed were 
acquired by the husband, and the marriage took place previous to 
the passage of the act; and it was in this manner that they distin- 
guished the case from that of Sutliff v. Forgey. "I have no desire 
to disturb the authority of that decision," observes Senator Ver- 
planck, in the course of his opinion, " which was settled in congruity 
with all the views I have taken of this case. That was the case of 
a resident alien widow whose husband (whether alien or naturalized 
seems wholly immaterial) actually bought lands during marriage, and 
after the enactment of the enabling statutes. It was there held that 
this purchase of lands inured to the benefit of the wife, who was at 
the time enabled to take a valid title in real estate; that her dower 
'being an incident or legal consequence' of the acquisition of land 
by the husband, she was a buyer within the intent of the law, the 
husband's purchase being in fact hers to the extent of the right of 
dower. This certainly differs from the case before us in the most 
material points, and though the decision rests on a very liberal con- 
struction of the statutes, yet I doubt not that it is within their spirit 
and intent, and should unquestionably govern all similar cases." 
Senator Wagner, who delivered a dissenting opinion, contended that 
the case was clearly within the spirit of the ruling in Sutliff v. Forgey, 
and that the judgment should be affirmed. 

M. In Connolly v. Smith, 3 the Supreme Court went to the extent 
not only of sustaining the case of Mick v. Mick, 4 as to the incapacity 
of an alien widow of a native-born citizen to be endowed, but held 
also that the alien widow of a naturalized citizen labored under the 
same disability, notwithstanding the various enabling acts in force at 

i See post, \\ 54-58. * Priest v. Cummings, 20 Wend. 338. 

s Connolly v. Smith, 21 Wend. 59. * Mick v. Mick, 10 Wend. 379; ante, § 31. 



CH. IX.] ALIENAGE AS AFFECTING DOWER. 165 

the time. The husband, an alien, came to reside in the State in 
1822. In August, 1823, he took the incipient steps to become nat- 
uralized, by duly declaring his intention to become a citizen. In 
January, 1828, he made and filed the deposition and certificate re- 
quired by the act of 1825. 1 In February, 1828, the premises in 
which dower was claimed were conveyed to him. In the month of 
April following he was married to the plaintiff, who was an alien, and 
first came to reside in the State in 1822. She had not then, nor at 
any time since the marriage, taken any steps under any of the 
enabling statutes to enable her to purchase or hold real estate. In 
March, 1829, her husband completed his naturalization, and in 1834, 
died. The claim of the plaintiff for dower was denied. 1. Because 
both her husband and herself came to the State subsequent to the 
legislative session of 1808, and therefore were not within either the 
act of 1802 or that of 1808. 2 2. Because she had not taken the 
incipient steps to be naturalized, nor made and filed the deposition 
required by the act of 1825, and therefore could take nothing by 
reason of the provisions of that act. 3. Because the second section 
of the dower act 3 (and which was here adverted to for the first time 
in the reported cases) did not apply to her, she not being the widow 
of an alien, but of a naturalized citizen'; thus making the right 
of the widow to dower depend upon the final act of the husband in 
completing his naturalization ; for, from the date of the marriage in 
April, 1828, down to the month of March, 1829, when he completed 
his naturalization, he was an alien; but during all that period he was 
entitled by law to hold lands in the State, having taken the prelim- 
inary steps and made the deposition required by statute. The real 
estate in which dower was claimed having been conveyed to him sub- 
sequently to his having taken those steps, he was fully authorized 
to hold the same. Had he died prior to taking the final step to per- 
fect his naturalization, the plaintiff would clearly have been entitled 
to dower, for she would then have been " the widow of an alien, who, 
at the time of his death, was entitled by law to hold real estate; and 
an inhabitant of the State at the time of such death." Thus, in this 
case, the contingent right of dower had attached at the marriage of 

i 1 Rev. St. 720, \\ 15, 16 ; ante, \ 30. 2 See ante, \ 29. 

3 1 Rev. Stat. (1st ed:) 740. This section reads as follows: "The widow of any 
alien, who, at the time of his death, shall be entitled by law to hold any real estate, 
if she be an inhabitant of this State at the time of such death, shall be entitled to 
dower of such estate in the same manner as if such alien had been a native citizen.'' 



166 THE LAW OF DOWER. [CH. IX. 

the parties; had continued until March, 1829, when, in the judgment 
of the court, it was divested by the simple act of the husband in 
taking out his final naturalization papers. 

35. In Currin v. Finn 1 the doctrine was reaffirmed that the statute 
allowing dower to the resident widow of an alien husband, 2 had no 
application where the husband was a citizen and the widow an alien. 
The plaintiff, an alien, had moved into the State prior to 1802; was 
married in 1818 to a citizen of the State, who died, leaving her his 
widow, in April, 1838. But the lands of which she claimed to be 
endowed were conveyed to her husband in 1833, and while, there- 
fore, the act of 1825 3 was in force. As she had taken none of the 
steps required by that statute to enable her to hold real estate, she 
was of course excluded from the benefit of its provisions. As to the 
claim for dower, so far as it was founded on the second section of 
the dower act, the judge delivering the opinion of the court used this 
language: "The remark of the late Mr. Justice Cowen in Connolly 
v. Smith, (21 Wend. 62,) I think is well sustained by the adjudica- 
tions on this question, that 'the course of legislation has been such, 
that while it has conferred a right of dower on the resident alien 
widow of an alien purchaser, it has denied the same right to an alien 
widow'of either a natural born or naturalized citizen, unless she file 
the proper deposition.'" This opinion was pronounced as late as 
July, 1846. 

36. Were it not for this imposing array of judicial authority to 
the contrary, it might seem to admit of a well-founded doubt whether 
the discrimination thus made against alien widows of native-born and 
naturalized citizens, did not only come in conflict with the spirit and 
policy of the enabling acts, but tend also to defeat the very objects 
and purposes which led to their adoption. And however the fact 
may be with regard to the propriety of this suggestion, it is quite 
certain that the views of the courts were not entirely satisfactory 
to the people of the State, for in April, 1845, a law was passed 
greatly enlarging the privileges conferred upon aliens, and cor- 
recting the then existing law in the particular above mentioned, 
by providing, in express terms, that the wife of an alien resident 
dying seized, and an alien woman marrying a citizen, should be en- 
titled to dower. 4 By the same enactment it is provided that the 

i Currin v. Finn, 3 Denio, 229. 2 1 Rey. St. 740, 1st ed. g 2. 3 See ante, \ 30. 
* Act of April 30, Laws 1845, ch. 115, p. 94. \\ 2, 3 ; N. Y. Rev. St. 5th ed. vol. 
jii. p. 7, \\ 34, 35. 



CH. IX.] ALIENAGE AS AFFECTING DOWER. 16T 

deposition required by the act of 1825 will avail, though filed sub- 
sequent to the acquisition of title, to enable an alien to hold lands 
in the same manner and with the same effect as a citizen of the 
United States. The grantees or devisees of resident aliens are 
made capable of taking and holding in the same manner as if such 
aliens were citizens, but if any of such devisees or grantees are 
aliens, and males of full age, they must file a deposition, as before, 
subject to a like condition as to filing it. The heirs at law of an 
alien resident may take and hold the real estate of their ancestor. 
On the same condition before referred to, an alien resident may grant 
or devise lands to a citizen or alien. 1 In New York, therefore, the 
law with respect to aliens stands upon a much more liberal footing 
than formerly. 2 

37. New Jersey. — In this State any alien friend may purchase, 
hold, and dispose of lands as fully as a citizen may do. All pur- 
chases made previously to the passage of the act conferring this 
right are confirmed. Title to lands acquired by descent or devise 
since January 22, 1817, in case the heir or devisee be an alien friend, 
is declared valid, whether the ancestor or testator were an alien or 
not. 3 In making title by descent it is no bar that any ancestor 
through whom the title is derived was an alien. 4 . 

In Yeo v. Mercereau, 5 it was decided that the widow of an alien 
who purchased land in New Jersey while he was an alien enemy, 
before the 22d of January, 1817, and who continued to hold after 

» Act of April 30, 1845, ch. 115, \\ 1, 4, 5, 6; 3 N. Y. Rev. Stat. 5th ed. pp. 6, 7, 
\\ 33, 36, 37, 38. See, also, p. 6, \ 30, Act of 1843, ch. 87, \ 1 ; 2 Kent, 9th ed. p. 70, 
note ; 4 Ibid. pp. 36, 37. 

a Upon the question of alienage generally, and the construction of the several New 
York statutes relating to that subject, see the following cases : Jackson v. Lunn, 3 
John. Cas. 109 ; Goodell v. Jackson, 20 John. 693 ; Jackson v. Etz, 5 Cowen, 314 ; 
Mooers v. White, 6 John. Ch. 360; Anstice v. Brown, 6 Paige, 448; Jackson v. 
Adams, 7 Wend. 367; Aldrich v. Manton, 13 Wend. 458; People o. Irvin, 21 Wend. 
128 ; Banks v. Walker, 3 Barb. Ch. 438 ; Matter of Windle, 2 Edw. Ch. 585 ; Matter 
of Leefe, 4 Edw. Ch. 395; Farmers' Loan and Trust Co. v. The People, 1 Sandf. Ch. 
139 ; Wright v. Trustees, &c. 1 Hoff. Ch. 202 ; Lynch v. Clarke, 1 Sandf. Ch. 583 ; 
Redpath v. Rich, 3 Sandf. S. C. 79 ; Beck v. McGillis, 9 Barb. 35 ; Cumberland v. 
Graves, Ibid. 595; S. C. 3 Seld. 305; Parish v. Ward, 28 Barb. 328; Watson v. 
Donnelly, Ibid. 653 ; McGregor v, Comstock, 3 Comst. 408 ; McCarthy v. Marsh, 1 
Seld. 263 ; Wadsworth v. Wadsworth, 2 Kern. 376 ; McLean u. Swanton, 3 Kern. 
535 ; Wright v. Saddler, 6 Smith, 320. 

3 Act of April 10, 1846, Nixon's Dig. p. 6, \\ 1, 2, 3. 

* Act of April, 1846, Nixon's Dig. p. 197, \ 12. 

s Yeo v. Mercereau, 3 Harr. 387. 



168 THE LAW OF DOWER. , [CH. IX. 

that period, and after he became an alien friend, was entitled to dower 
in such premises by virtue of the statute of that date. 1 

38. New Hampshire. — Any alien resident in this State may take, 
purchase, hold, convey, or devise any real estate, and the same may 
descend in the same manner as if he were a native citizen. 2 

39. North Carolina. — By the constitution of North Carolina, 

Every foreigner who comes to settle in this State, having first taken an oath 
of allegiance to the same, may purchase, or by other just means, acquire, hold, 
and transfer land, or other real estate. 3 

Although by this provision a resident foreigner who has taken the 
oath of allegiance may acquire land by purchase, and hold and trans- 
fer the same, 4 it is nevertheless held that he can not take by devise 
nor descent. 6 The Revised Code of 1854 contains the following 
provision : — 

Where any person shall die leaving relations, citizens of the United States, 
capable of inheriting his estate, if there might be no other nearer kindred, but 
■who by a rule of the common law can not inherit, because there are others of 
nearer kindred, (as aliens, or others,) who can not hold land in the State, the 
estate of such deceased person shall descend to such of the first mentioned 
relations as would be entitled if there were no other relations whatever. 6 

40. Vhio. — As early as the year 1804 the legislature of Ohio 
passed the following enactment, which is still in force: — 

It shall be lawful for any and all aliens that now may have, or that hereafter 
shall be entitled to have, within this State, any lands, tenements or heredita- 
ments, either by purchase, gift, devise, or descent, to hold, possess, and enjoy 
the same as fully and completely as any citizen of the United States or this 
State can do, subject to the same laws and regulations, and not otherwise.' 

1 Elmer's Dig. p. 6; see, also, Ibid. pp. 131, 143; Rev. Stat. 1847, ch. 1, \ 1 ; 
Laws of N. J. by PatersoD, 26. The act of 1799 gave dower to alien widows ; Pater- 
son, p. 343, \ 1. See, also, Colgan v. McKeoD, 4 Zab. 56&. 

2 Rev. St. ch. 129, \ 4; Comp. Stat. 1853, p. 287, ch. 135, \ 4. See Montgomery 
I/. Dorion, 7 N. H. 475. 

3 Const. N. C. \ 40. 

* Rouche v. Williamson, 3 Ired. 141. 

5 Doe v. Hornibleu, 2 Hayw. 37, 104, 108; University v. Miller, 3 Dev. 192, 196; 
Copeland v. Sauls, 1 Jones, L. R. 70 ; Paul v. Ward, 4 Dev. 247 ; Atkins v. Kron, 2 
Ired. Eq. 58, 423; S. C. 5 Ired. Eq. 207; Kay v. Webb, 1 Mur. 134; Marshall v. 
Loveless, Cam. & Nor. 217. 

e Rev. Code N. C. (1854,) p. 249, ch. 38, Rule 9. . 

! 29 Ohio Laws, 463 ; Rev. St. 1841, p. 62, ch. 3 ; 1 Swan & Critchf. p. 69, oh. 3. 
A writer in the Western Law Journal has attempted to show that this act does not 
confer upon an alien any new right to acquire or hold real estate ; 6 West. Law 



CH. IX.] ALIENAGE AS AFFECTING DOWER. 169 

41. Oregon. — By the laws of Oregon 

Any alien may acquire and hold lands, or any right thereto, or any interest 
therein, by purchase, devise, or descent, and he may convey, mortgage and 
devise the same, and if he shall die intestate the same shall descend to his 
heirs ; and in all cases such lands shall be held, conveyed, mortgaged, or de- 
vised, or shall descend in like manner, and with like effect as if such alien were 
a native citizen of this territory, or of the United States. 1 

42. Pennsylvania. — In the year 1683, William Penn, as proprie- 
tary of Pennsylvania, in a charter granted to the inhabitants thereof, 
declared that in the case of aliens purchasing lands in the province, 
and dying therein without being naturalized, their estates should 
descend as if they were naturalized. 2 In 1807 it was enacted that 
alien friends who had declared their intention to become citizens, 
might purchase and hold lands not exceeding five hundred acres. 3 
An act was passed by the legislature of the State on the 22d of 
March, 1814, by which it is provided that all aliens who, on the 18th 
of June, 1812, resided in the State, and continued to reside therein, 
may, upon filing a declaration of their intention to become citizens, 
take, hold, and convey lands, not exceeding two hundred acres, nor 
in value twenty thousand dollars, as fully as citizens may do. By 
the act of March 24, 1818, alien friends are permitted to purchase 
lands not exceeding five thousand acres, and "hold the same to 
them, their heirs and assigns forever, as fully as any natural born 
citizen or citizens may or can do." 4 This act contains no condition 
with regard to residence. By an earlier statute the right of alien 
friends to take and hold lands by descent is given without restriction 
as to quantity. 5 An act was also passed in March, 1837, by which 
purchases by alien friends resident within the United States, not ex- 
ceeding five thousand acres in quantity, and the titles of heirs and 
devisees of aliens, are confirmed. 6 The act of April 16, 1844, con- 
firms titles previously acquired by aliens, either by purchase or de- 



Jour. 76. But this construction is contrary to the general understanding of the 
profession in Ohio, and appears to be in conflict with the intent of the legislature as 
fairly deducible from the act itself. 

i Stat, of Oregon, (1855,) p. 409, g 35. 

2 Proud's Pennsylvania, vol. ii. App. 27. 

s Act of Feb. 10, 1807, \ 1 ; Purdon's Dig. by Brightly, p. 44, {S 4. 

* Purdon's Dig. by Brightly, p. 45, \\ 6, 7, 8. 

5 Stat. Feb. 23, 1791 ; Purdon's Dig. by Brightly, p. 44, \ 1. 

6 Dunlop's Laws, 908 ; Purdon's Dig. by Brightly, p. 45, \ 9. 



1T0 THE LAW OP DOWER. [CH. IX. 

scent, to lands not exceeding two thousand acres in quantity. 1 And 
the act of May 1, 1861, confers upon aliens the right to purchase 
and hold lands not exceeding five thousand acres, nor in net annual 
income twenty thousand dollars. 2 

43. It will be seen by the foregoing that the act of March, 1814, 
was confined to such aliens as resided in the State on the 18th of 
June, 1812. The act of March, 1818, appears to confer upon alien 
friends, whether resident of the State or not, equal power with na- 
tive citizens to purchase, hold, and dispose of real estate, and trans- 
mit the same by descent. The only apparent restriction is with 
reference to the quantity, and as the disability within the limitation 
as to quantity is entirely removed, it would seem to follow that to 
the same extent the right of dower would attach. And a learned 
writer has said that in those of the United States in which an alien 
is permitted to hold land, alienage, whether of the husband or wife, 
would be no impediment to dower. 3 But in Pennsylvania, the ruling 
in Reese v. Waters* appears to leave this question somewhat in doubt 
so far as alien widows are concerned. It was there held, contrary 
to the view taken in Sutliff v. Forgey, 5 upon a statute somewhat sim- 
ilar, that the term " purchase," as used in the act of 1818, contem- 
plated a purchase in the ordinary sense of that word, and that it 
could not be extended to what the court denominated a mere " tech- 
nical purchase, which is such, only, for the purposes of classification 
under heads treated by commentators." And under this strict ad- 
herence to the literal terms of the act, it was decided that under the 
statute of 1818 an alien " acquires no title in his wife's estate of in- 
heritance as tenant by the curtesy initiate." 

44. Rhode Island. — In Rhode Island, courts of probate 

Have power to grant petitions of aliens for leave to purchase, hold, and dis- 
pose of real estate within their respective towns, provided the alien petitioning 
shall, at the time of his petition, be resident within this State, and shall have 
made declaration, according to law, of his intention to become a naturalized 
citizen of the United States. 6 ' 

45. South Carolina. — By the act of 1799 all free white persons 

1 Purdon's Dig. by Brightly, p. 45, .g 10. 

2 Ibid. \ 11 ; sections 12 to 16, inclusive, confirm titles derived through aliens. 
3 1 Greenl. Cruise, 174, note. 

* Reese v. Waters, 4 Watts & Serg. 145 ; accord. Mussey v. Pierre, 24 Maine, 559. 
5 Sutliff t>. Forgey, 1 Cow. 89; ante, \ 29. 
« Rev. Stat. 1857, p. 351, ch. 151, \ 21. 



CH. IX.] . ALIENAGE AS AFFECTING DOWER. 171 

resident in the State, (alien enemies, fugitives from justice, and per- 
sons banished from either of the United States excepted,) on taking 
an oath of allegiance, were enabled to purchase and hold real prop- 
erty within the State. 1 By the act of 1807, aliens who had declared 
their intention to become citizens of the United States, were per- 
mitted to take, hold, and convey lands, and titles derived from aliens 
were confirmed. Persons holding property under this act were per- 
mitted to convey or devise the same to their children or grandchil- 
dren ; and if not conveyed or devised, it was to descend according to 
the law regulating descents ; provided, however, that the children, 
grandchildren, or persons entitled to take by descent, should become 
residents in the State within twelve months after the date of the con- 
veyance, or the decease of the testator or intestate^ and also become 
citizens within as short a period as was allowed under existing laws. 2 
A later act provides that when any person shall die intestate, leaving 
no lineal descendants, but leaving a widow, and a father or mother, 
and brothers or sisters of the whole blood, the estate real and per- 
sonal of such intestate shall go, one moiety to the widow, and the 
o.ther moiety, in equal proportions, to the brothers and sisters of the 
whole blood, and the father ; or, if he be dead, the mother to take 
his share. 3 The rule of the common law is still further modified by 
the act of 1856, which is as follows : — 

If any citizen of the United States shall die seized, possessed of, or interested 
in any land or real property situated and being within this State, and leave a 
widow born without the limits of the United States, and who has not been nat- 
uralized, such widow shall be entitled to all the same rights, interest and estate 
in and to such land and real property, and be possessed of the same powers, 
privileges, and capacities to hold, enjoy, convey, and transmit the same as if she 
were naturalized. 4 

1 1 Brev. 236. See McClenaghan v. McClenaghan, 1 Strob. Eq. 295, and Labatut 
v. Scmidt, 1 Speer's S. C. Eq. 421, giving a construction to this act. 

2 Stat. S. C. vol. v. p. 546, \\ 1, 2; see Fox v. Husman, 7 Rich. 165, and Keenan 
v. Keenan, Ibid. 345, giving a construction to the acts of 1807, 1826, and 1828, 6 
Stat. S. C. 284, 362 ; see, also, Vaux v. Nesbit, 1 McCord's S. C. Ch. 352, 374, hold- 
ing that an alien was formerly incompetent to transmit lands by descent; S. P., 
Ennas v. Franklin, 2 Brev. 398. 

» Acts of 1851, p. 80. 

4 Acts of 1856, p. 585. For further decisions under prior laws, see Haleyhuton 
v. Kershaw, 3 Desaus. 106 ; Sebben v. Trezevant, 3 Desaus. 213 ; Clifton v. Haig, 
4 Desaus. 330; Scott v. Cohen, 2 Nott & McCord, 293; McDaniel v. Richards, 1 
McCord, 187; Escheator u. Smith, 4 McCord, 452; Meeks v. Richbourg, 1 Rep. 
Con. Court, 411 ; Laurens v. Jenney, 1 Speer, 356; McCaw v. Galbraith, 7 Rich. 74; 
Davis v. Hall, 1 N. & M. 292 ; Richards v. McDaniel, 2 Rep. Con. Court, 18. 



172 THE LAW OF DOWER. [CH. IX. 

46. Tennessee. — The act of 1809 provided that in all cases where 
any person within the State should die intestate without issue, and 
possessed of any estate, real or personal, the said estate should de- 
scend to such person or persons who were next of kin to the dece- 
dent, and resident within the United States, to the perpetual exclu- 
sion of aliens who might be related to the decedent in a nearer de- 
gree. 1 This act was repealed by the statute of 1848. 2 The law now 
in force on the subject of alienage is as follows : — 

1998. Any alien may take and hold real estate in this State by purchase, in- 
heritance, or in any other way which may be agreed upon by treaty between the 
United States and the country of which he is a citizen or subject. 

1999. Any alien resident in this State who has legally declared his intention 
under the naturalization laws to become a citizen of the United States, may take 
and hold, dispose of,or transmit by descent, any real estate as a native citizen. 

2000. An alien who is resident in the United States at the time of the death 
of an intestate, and has declared, or shall within twelve months thereafter de- 
clare his intention, according to the acts of Congress, to become a citizen, shall 
become capable of inheriting the estate of such intestate. 3 

47. Texas. — Aliens may take and hold any property, real or per- 
sonal, in this State, by devise or descent, from any alien or citizen, 
in the same manner that citizens of the United States may take and 
hold real or personal estate by devise or descent within the country 
of such alien. Any alien, being a free white person, who shall be- 
come a resident of the State, and shall, in conformity with the natu- 
ralization laws of Congress, have declared his intention to become a 
citizen, has a right to acquire and hold real estate in the same man- 
ner as if he were a citizen of the United States. 4 

48. Virginia. — Any alien friend, being a free white person, resi- 
dent within the State, on making oath before competent authority 
that he intends to continue to reside therein, may inherit, or pur- 
chase and hold real estate as if he were a citizen of the State. And 
he may convey or devise any real estate so held by him, and if he 

1 Act of 1809, ch. 53, g 1. This act came under review in Starks v. Traynor, 11 
Humph. 292 ; see, also, Williams v. Wilson, Mart. & Yerg. 248. 

2 Act of 1848, ch. 165, \ 1. 

3 Cude of Term, by Meigs & Cooper, (185§,) p. 407, part 2, tit. 1, ch. 2; see, also, 
Car. & Nich. Dig. (1836,) p. 87, ch. 36. 

4 Act of Feb. 13th, 1854, ch. 70, gg 2, 3; Oldham & White's Dig. Laws Tex. p. 33, 
art. 4, 5; see Merle v. Andrews, 4 Texas, 200; Hardy v. De Leon, 5 Texas, 211; 
Cryer c Andrews, 11 Texas, 170 ; Lee v, Salinas, 15 Texas, 495 ; White v. Saba- 
riego, 23 Texas, 243 ; Wardrup v. Jones, Ibid. 489 ; Jones v. McMasters, 20 How. 
U. S. 8. 



CH. IX.] ALIENAGE AS AFFECTING DOWER. 1*73 

die intestate it shall descend to his heirs, and any such alienee, de- 
visee or heir, whether a citizen or an alien, may take under such 
alienation, devise, or descent, provided he shall, if an alien, come or 
be in the State within five years thereafter, and before some court 
of record declare on oath that he intends to reside therein. Any 
alien having an interest in real estate, who becomes a citizen of the 
United States, or who sells or devises the same before an escheat is 
declared, or dies seized or possessed thereof before proceedings for 
an escheat are instituted, such person himself in the first case, and 
in the second the purchaser, lessee, heir, or devisee from him, if a 
citizen of the United States, may hold the same, discharged from all 
claim of the State by reason of such alienage. Any woman whose 
husband is a citizen of the United States, and any person whose 
father or mother, at the time of his birth, was a citizen thereof, may 
take and hold real or personal estate, by devise, purchase, or inherit- 
ance, notwithstanding he or she may have been born out of the 
United States. Any alien resident, the subject of a friendly State, 
may take and hold lands for the purpose of residence, or for the pur- 
pose of any business, trade, or manufacture, for a term not exceed- 
ing twenty-one years. And when by any treaty in force between 
the United States and any foreign country, a citizen or subject of 
such country is allowed to sell real property within the State, such 
citizen or subject may sell and convey the same, and receive the 
proceeds thereof, within the time prescribed by such treaty. 1 

49. Vermont. — The constitution of Vermont contains the follow- 
ing provision : — 

Every person of good moral character who comes to settle in this State, hav- 
ing first taken an oath or affirmation of allegiance to the same, may purchase, 
or by other just means acquire, hold, and transfer land, or other real estate ; 
and after one year's residence shall be deemed a free denizen thereof, and enti- 
tled to all rights of a natural born subject of this State. 2 

50. Wisconsin. — The constitution of Wisconsin declares that 



i Code, 1849, p. 498, ch. 115, \\ 1-6. See Robertson v. Miller, 1 Brock. 466: 
Hubbard v. Goodwin, 3 Leigh, 492 ; Stephens v. Swann, 9 Leigh, 404 ; Jackson v. 
Sanders, 2 Leigh, 109 ; Barzizas v. Hopkins, 2 Rand. 276 ; Marshall v. Conrad, 6 
Call, 364. 

2 Const. Verm. \ 39. An exception is annexed as to eligibility to certain State 
offices until after two years' residence. See, also, State v. Boston, C. & M. R. R. 
Co., 25 Verm. 433 ; Albany v. Derby,. 30 Verm. 718. 



174 THE LAW OF DOWER. [CH. IX. 

No distinction shall ever be made by law between resident aliens and citi- 
zens, in reference to the possession, enjoyment, or descent of property. 1 

It is provided by statute that aliens may take and hold lands by 
purchase, devise, or descent ; and may convey, mortgage, or devise 
the same ; and, if they die intestate, such lands shall descend in like 
manner as if they were citizens of the United States. 2 Alienage is 
no bar to dower ; and any woman residing out of the State is entitled 
to dower in lands lying within the State of which her husband died 
seized, in the same manner as if she and her husband had been resi- 
dents at the time of his decease. 3 

51. District of Columbia. — In the District of Columbia an alien 
may take, hold, transmit and convey lands, in the same manner as 
if he were a citizen of the United States. 4 

52. From the foregoing synopsis of the legislation and reported 
decisions of the different States on the subject of alienage, it will be 
seen that there is a marked difference in the several States with re- 
spect to the privileges conferred upon aliens, and the favor with 
which they are regarded. In a portion of the States the rule of the 
common law prevails with but little modification. In others its se- 
verity is more or less mitigated; while in others again it is entirely 
abrogated. The privileges thus conferred by State authority are 
strictly local, and necessarily territorial in their nature. Conse- 
quently, if the steps required by the naturalization laws of Congress 
have not been complied with, so as to give to the alien party the 
rights and privileges of a citizen, he is remitted, so far as the capa- 
city or privilege to acquire, enjoy, or dispose of real estate is con- 
cerned, to the local laws and regulations of the particular State where 
the lands may be situate. 5 It is hardly necessary to add that the 
right to the estate of dower is governed by the same general rule. 

Naturalization in the United States. 

53. The Constitution of the United States confers upon Congress 
power "to establish a uniform rule of naturalization," 6 and it seems 

i Const. Wis. art. i. \ 15. 

» Rev. Stat. 1849, p. 337, \ 35; Rev. Stat. 1858, p. 549, g 35. 

• Rev. Stat. 1849, p. 335, g 21 ; Rev. Stat. 1858, p. 548, g 21. 

* Rev. Code Dist. Col. (1857,) p. 180, g 2. 

5 Corfield v. Coryell, 4 Wash. C. C. Rep. 371 ; 2 Kent, 70, 71. 

6 Art. 1, g 8, sub. 5. 



CH. IX.] ALIENAGE AS AFFECTING DOWER. 175 

that this power is possessed exclusively by that body. 1 Under the 
authority thus conferred a number of acts have been passed, pre- 
scribing the conditions, pointing out the manner, and declaring the 
effect of naturalization. 2 Any alien, being a free white person, who 
has resided in the United States for the prescribed period, and com- 
plied with all the conditions of the law to perfect his naturalization, 
is thereby "admitted to become a citizen of the United States, or 
any of them." 3 Children under the age of twenty-one years, of per- 
sons naturalized, if dwelling in the United States at the time of the 
naturalization of their parents, are considered as citizens. 4 In case 
any alien has taken the preliminary oath required by the act of 1802, 
and pursued the directions of the second section of the same act, 5 
and dies before he is actually naturalized, the widow and children of 
such alien shall be considered as citizens of the United States, and 
shall be entitled to all rights and privileges as such upon taking the 
oaths prescribed by law. 6 A married woman may avail herself of 
the benefits of this legislation, and become a naturalized citizen. 7 
And it has been held that the consent and concurrence of her hus- 
band are not necessary to the validity of the act. 8 Naturalization 
of the husband does not, of itself, confer the rights of citizenship 
upon an alien wife. 9 But by a recent act of Congress the rights and 
privileges of alien feme coverts have been extended, and it is pro- 
vided that any woman who might lawfully be naturalized under exist- 
ing laws, and who is or shall be married to a citizen of the United 



1 See Chirac v. Chirac, 2 Wheat. 259 ; United States v. Villato, 2 Dall. 372 ; Thur- 
low v. Massachusetts, 5 How. 585 ; Smith v. Turner, 7 Ibid. 556 ; Golden v. Prince, 
3 Wash. C. C. Rep. 314. 

2 Act of 14th April, 1802, 2 Stat. 153; Act of March 26, 1804, 2 Stat. 292; Act 
of March 3, 1813, 2 Stat. 811; Act of March 22, 1816, 3 Stat. 259; Act of May 26, 
1824, 4 Stat. 69 ; Act of May 24, 1828, 4 Stat. 310 ; Brightly's Dig. 33-36 ; 2 Kent, 
51-54. 

» Act of April 14, 1802, g 1. 

* Ibid. \ 4. 

6 This section was repealed by the act of May 24, 1828, \ 1 ; 4 Stat. 310 ; see 
Brightly's Dig. 34, note. It prescribed regulations for the registry of aliens. 

« Act of March 26, 1804, \ 2. See Foss v. Crisp, 20 Pick. 121, and White v. White, 
2 Met. (Ky.) 185, as to the effect of the death of the husband or ancestor before 
taking the final oath, and the requirement of the law in such cases. 

» Ex parte Marianne Pic, 1 Cr. C. C. 372. See Brown v. Shilling, 9 Maryl. 74 ; 
McDaniel v. Richards, 1 McCord, 187. 

» Priest v. Cummings, 16 Wend. 617 ; S. C. 20 Wend. 338. 

s White v. White, 2 Met. (Ky.) 185 ; see Wightman v. Laborde, 1 Spear, (S. C.) 525. 



176 THE LAW OF DOWER. [CH. IX. 

States, shall be deemed and taken to be a citizen. 1 This law is sub- 
stantially a re-enactment of the 7 and 8 Victoria, chap. 66, and is 
very important in its bearing upon the rights of alien women, for its 
effect appears to be to invest the alien wife of a citizen, whether 
native born or naturalized, with all the rights of a native-born woman, 
and indeed to make her marriage with a citizen, ipso facto, work her 
naturalization. It remains a question, however, whether the act ex- 
tends to a case where the husband and wife are both aliens, and are 
married, either abroad or in this country, before the naturalization 
of the husband. A strict construction of the act would seem to 
require that the husband, at the time of the marriage, should be a 
citizen, but whether native born or by naturalization would not per- 
haps be material. 

Naturalization in the United States prospective only. 

54. Reference was made in the preceding pages to that feature of 
the English law which gives to the act of naturalization a retroactive 
effect, and it was incidentally stated that in the United States this 
doctrine was not recognized. 2 It remains for us to notice, in this 
connection, some of the decisions of the American courts with regard 
to this question. 

55. The subject underwent very full and thorough discussion in 
the case of Priest v. Cummings; 3 and the opinion of the court upon 
the question is replete with learning, and exhibits with clearness and 
precision the law bearing upon it. "Assuming," says the judge de- 
livering the opinion, "the naturalization in October, 1829, to have 
been valid, it is contended that it can not operate retrospectively, so 
as to attach the right of dower to premises which were previously 
aliened by the husband in 1802. The act of Congress affords no 
great light to aid us in determining this point of the case ; it merely 
declares that upon complying with its provisions the applicant shall 
'become a citizen of the United States,] leaving the effect or measure 
of capacity thus conferred to the judgment of the law. Lord Coke 
says, that an alien naturalized by act of Parliament is to 'all intents 
and purposes a natural born subject.' 1 Co. Litt. 129, a. It is also 
said, that naturalization is an adoption of one to be entitled to what, 



i Act of Feb. 10, 1855, | 2 ; Brigntly's Dig. 132. 2 Ante, \ 4. 

3 Priest v. Cummings, 16 Wend. 617; S. C. 20 Wend. 338. 



CH. IX.] ALIENAGE AS AFFECTING DOWER. 177 

by birth an Englishman may claim, and takes effect from the birth 
of the party, but denization from the date of the patent. Viner's 
Abr. tit. Alien, letter D. Naturalization in Ireland has no effect in 
England, because it is a fiction of law, and can affect only those con- 
senting to the fiction. When the law makers have power, it has the 
same effect as a man's birth there. Id. pi. 7, — 1 Bac. Abr. tit. Aliens, 
130. The position in 1 Black. Comm. 374, is, that naturalization 
can not be performed, but by act of Parliament ; for by this, an alien 
is put in exactly the same state as if he had been born in the king's 
legiance. From these and other authorities that might be referred 
to, it sufficiently appears that the uninheritable blood of the alien be- 
comes purified, and made inheritable by naturalization; and in some 
respects reaches back to his birth. All previous disabilities, as to 
taking or transmitting real estate, are at once removed, and any de- 
fective or forfeitable title, by reason of alienism, becomes perfect and 
indefeasible. 1 John. Cas. 398 ; 7 Wend. 335. Hence children born 
before naturalization, will inherit the same as those born after, though 
it is otherwise in case of denization, the effect of which is simply 
prospective. Lands purchased before may be held and transmitted 
the same as those acquired afterwards. But the difficulty in sustain- 
ing the claim of the plaintiff upon the retroactive operation of hey 
naturalization, and consequent investment of her capacity to take 
her dower during the whole period of her coverture, is, that, at the 
time the husband executed the mortgage, and thereby parted with 
his title, as in effect he did, as there has since been a foreclosure 
under it, she was a disabled person in law by reason of alienism, and 
had no capacity, independent of the enabling statutes, to take even 
an inchoate right of dower. It may be said there was no defective 
or forfeitable right or title existing, to be forfeited, because there 
was no right at all vested in her that could attach at the time of the 
alienation; and therefore, it must attach, if at all, for the first time 
when the estate is in the hands of innocent third persons. The law 
which nihil facit frustra will give no estate which it does not enable 
the donee to keep ; and, therefore, an alien can take nothing either 
by descent, curtesy or dower. If he purchase, he may be said to 
acquire an estate till office found; but he takes nothing by act of 
law. 7 Cowen, 50; 5 Id. 52; 1 Vent. 417; Park on Dower, 228. 
The only case that has been referred to, or that I have been able to 
find after a pretty full examination, where the widow is even said to 
be entitled to dower out of an estate aliened by the husband, during 

VOL. I. 12 



178 THE LAW OF DOWEK. [CH. IX. 

the existence of a natural disability to take dower, and consequently 
before any right attached to the land, is the case of a subsequent 
naturalization of the wife by act of Parliament. This exception to 
the general rule, if it exist at all, will be found, I apprehend, to de- 
pend upon the peculiar language of the act, together with the omnip- 
otent power admitted by the courts to belong to the statutes of that 
body. Aliens, in England, are naturalized by private acts of Par- 
liament, which are not published among the general laws. I have 
not been able to find one of those acts so as to be able to examine 
the phraseology. It is said by Lord Coke, that if a man take an 
alien to wife, and afterwards aliens his lands, and after she is made 
a denizen the husband die, she shall not be endowed, because her 
capacity and possibility to be endowed come by denization. ' Other- 
wise,' he says, 'it is, if she were naturalized by act of Parliament.' 
Co. Litt. 33, a. Viner and Cruise lay down the same position. The 
latter author remarks, that, if an alien be naturalized by act of Par- 
liament, she then becomes entitled to dower out of all lands whereof 
her husband was seized during coverture. See, also, 1 Roll. Abr. 
675, Park on Dower, 229. Where the incipient right of dower once 
attaches, and the alienation takes place during its suspension or the 
existence of a temporary disability, which is subsequently removed 
before the death of the husband, there the right revives and exists in 
full force, in contemplation of law from its commencement. Several 
examples are stated and sanctioned by the court in Menvil's case, 13 
Co. 23; such as an alienation before the wife is of an age to be dow- 
able, or during her elopement, or during the existence of an attaint 
of felony. In all these instances, it is said there is not any inca- 
pacity or disability in the person, but only a temporary bar until the 
proper age, reconcilement, or pardon ; that the wives were not in- 
capable by birth, but lawfully entitled to dower by the marriage and 
seizin; and that, therefore, where the impediment is removed, they 
shall be endowed. Hargrave's n. 202 ; Viner, tit. Dower, q. pi. 2 ; 2 
Bac. Abr. tit. Dower, 359 ; 1 Cruise, 173. But this rule, it said, is 
not applicable to the case of an alien wife, who has become a denizen 
by letters patent, because at the time of the alienation of the hus- 
band, she was absolutely disabled by law from her birth, and the 
capacity and ability to take dower began with her denization. This 
distinction adds some weight to the remark before made in respect 
to the position of Lord Coke, as to the effect of naturalization, 
namely, that it depends upon no general principle, but exists as an 



CH. IX.J ALIENAGE AS AFFECTING DOWER. 179 

exception, by reason of the particular wording, and force of the act 
of Parliament. The case of Fish v. Klein, 2 Merivale, 431, may 
be referred to as an authority for the remark. There K., an alien, 
had sold and conveyed certain premises, and an act of naturalization 
was procured to perfect the title in the grantee. The language of 
the act was 'that the said F. K. shall be, and is thereby from thence- 
forth naturalized,' &c. It was contended that it could not establish 
retrospectively an invalid title. The master of the rolls concurred 
in this view, and held that it did not operate to confirm the title in 
the grantee ; in other words, that it did not invest K. retrospectively 
with a capacity to hold and convey real estate. It is stated in a 
note to the case that the vendors were desirous of having retrospect- 
ive words introduced into the act, but that they found it was imprac- 
ticable to depart from the common form. The case at least shows, 
what might well be supposed without it, that the effect of an act of 
naturalization depends upon the language of it ; and that an express 
clause for this purpose is essential to its retroactive operation, in 
order to vest a disabled person with an antecedent interest in real 
estate." 

56. In the Court of Errors, also, where the case was taken on 
error to the Supreme Court, elaborate opinions were delivered by 
Chancellor Walworth and Senator Verplanck, concurring with the 
Supreme Court in the conclusion to which it arrived as to the effect 
of naturalization under the laws of Congress, and devoting to the 
subject a very considerable share of attention. 1 The following ex- 
tract is from the opinion of the chancellor : " The effect of a stat- 
utory naturalization in England, in overreaching previous vested 
rights, depends upon the omnipotence which has been ascribed 
to an act of Parliament ; in which, at some of the earlier periods of 
English history, a due regard was not always paid to the rights of 
third parties who had not petitioned for the passing of the act. 
These private acts of naturalization are seldom found in the printed 
collection of English statutes ; but by reference to one which is 
published by Mr. Chitty as the common form of such acts, 2 Chit. 
Com. Law, App. 325, it will be seen that the nature and extent of 
the rights acquired under it are declared in the act itself, and that 
the language is very strong to show the intention of the law makers 
to give it a retrospective operation, not only as to inheritable blood, 

» Priest v. Cumminga, 20 Wend. 338. 



180 THE LAW OF DOWER. [CH. IX. 

but also to place the person naturalized in the same situation, both 
actually and constructively, as if he had been a natural born citizen 
at the moment of his birth. To show that by the common law a 
mere parliamentary act of naturalization did not necessarily retro- 
spect, without reference to the terms of the act, it is only necessary 
to refer to the opinion of Lord Hale, in the great case of Colling- 
wood v. Pace, 1 Ventr. 419. He says : ' Touching the retrospect 
of a naturalization, and whether the eldest son, being an alien, natu- 
ralized after the death of the father, shall direct the descent to the 
youngest, depends upon the words of the naturalization, which being 
by act of Parliament, may by a strange retrospect direct it. But as 
the naturalization in the case in question is penned, it would not do 
it ; the naturalization hath only respect to what shall be hereafter.' 
I conclude, therefore, that the naturalization of the defendant in 
error had the same effect as to the rights of property as letters of 
denization had by the common law, and the same effect as to all 
other rights that an act of Parliament giving her all the rights of a 
natural born subject, and without any special provisions to give it a 
retrospective operation. She therefore had from that time the ca- 
pacity to take an estate in dower, of and in any lands of which the 
husband was then seized of an inheritable estate : to take lands by 
devise or descent from any person capable of conveying or transmit- 
ting lands in that manner to her : and to take any other interest in 
real estate by gift or otherwise to herself, and to sell, alienate, or 
bequeath the same, or transmit the same to such of her heirs as were 
capable of taking by descent, as fully as a natural born citizen might 
do, but not otherwise. Her naturalization, however, did not retro- 
spect so as to deprive the mortgagees of her husband, or those claim- 
ing under them, of any right or interest in his lands which they had 
acquired previous to her naturalization." 

57. A portion of the opinion of Senator Verplanck, in the same 
case, possesses considerable value on account of the comparison which 
he institutes between the language of the naturalization acts of Con- 
gress and that employed in several of the special naturalization acts 
of England. "I can not agree with the chief justice," he says, 
" that ' the act of Congress affords no great light to aid us in de- 
termining this point in the case.' On the contrary, it strikes me for- 
cibly that the language of our acts of Congress on this subject, points 
out a strong distinction between the legal operation of the rights of 
citizenship acquired under them, and that of the naturalization con- 



CH. IX.J ALIENAGE AS AFFECTING DOWER. 181 

ferred by a British act of Parliament. In the acts of Parliament the 
operative words are the same with those used in the books ; I believe 
in all cases, certainly in all the cases where I have been able to as- 
certain the facts — either the more general acts in the statutes at 
large, or those cited in the reports. It is enacted that the party 
shall be ' naturalized,' or ' shall be, deemed, adjudged and taken to 
be a natural bom subject,' as if bom within the kingdom. Thus 
in a statute, 33 Henry VIII., ' The children of Thomas Powers and 
others shall be reputed natural born subjects.' In the statute of 7 
Anne, c. 5, 'All persons born out of the ligeance of her majesty 
who shall qualify themselves (&c. as therein provided) shall be 
deemed, adjudged and taken to be natural bom subjects of Ireland, 
to all intents, constructions and purposes, as if they had been born 
within the said kingdom.' So again, by 2 George III., 25, certain 
foreign officers and soldiers, who had served in America, are natu- 
ralized- in the same words, ' to be deemed and adjudged, as if they 
had been born within the realm.' These seem to be the uniform op- 
erative words ; and their legal effect, as stated by all the authorities, 
is, ' that an alien is put in exactly the same state as if he had been 
born in the king's dominions,' 2 Black. Com. 374; or, in the lan- 
guage of Lord Coke, ' is to all intents and purposes a natural born 
subject.' From the very words employed, then, (unless there be 
some restrictive condition added,) every such naturalization must 
relate back to the time of birth of the individual. The naturalized 
subject is, in the eye of the English law, one native born. The 
courts do not, and can not look behind the act of Parliament to prior 
disabilities. By the omnipotence of Parliament the naturalized alien 
is to all intents a subject from his birth." 

58. In an early case, 1 it had been decided in New York, on the 
strength of the English authorities which have already been noticed, 
and apparently without much consideration of the subject, that nat- 
uralization in this country has a retroactive effect, and 'operates to 
confirm title to real estate granted to an alien before the date of the 
naturalization. And in Massachusetts, also, thirteen years after- 
wards, the general rule of the English common law that naturaliza- 
tion of an alien friend places him " upon the same ground as if born 
a citizen," was said by Chief Justice Parsons to be in force in the 



1 Culverhouse v. Beach, 1 John. Cas. 399, decided in 1800. 



182 THE LAW OF DOWER. [CH. IX. 

United States. 1 But the reasoning of the court in Priest v. Cum- 
mings, and the peculiarities in phraseology distinguishing the English 
acts of Parliament from the acts of Congress, pointed out by the 
judges, appear fully to sustain the conclusion arrived at in that case. 
Decisions in other States are in conformity with this view. In Vaux 
v. Nesbit 2 it is said that " the words of our statutes for naturalizing 
aliens are evidently prospective," and the point was so ruled by the 
chancellor. The cases of Wightman v. Laborde, 3 Keenan v. Keenan, 4 
and White v. White, 5 are to the same effect. In Labatut v. Scmidt 6 
the question was left undecided, but it is apparent that the inclina- 
tion of the court was in the same direction. It may be assumed, 
therefore, with some degree of confidence, that in the United States, 
naturalization has no retroactive effect, but in its operation is pro- 
spective only. 7 

What persons can not become citizens. 

59. The acts of Congress authorizing the naturalization of aliens 
limit the right to "free white persons," thus excluding from their 
operation Indians, the inhabitants of Africa and their descendants, 8 
and perhaps the natives of Asia. 9 It has been judicially decided in 
several of the United States that Indians are not citizens, but dis- 



1 Ainslie v. Martin, 9 Mass. R. 454, 460. 

2 Vaux v. Nesbit, 1 MoCord's (S. C.) Ch. 352. 
a Wightman v. Laborde, 1 Spear, (S. C.) 525. 

4 Keenan v. Keenan, 7 Rich. Law R. (S. C.) 345. 

5 White v. White, 2 Met. (Ky.) 185. 

6 Labatut v. Scmidt, 1 Speer's S. C. Eq. R. 421. 

7 On the subject of naturalization generally, see the following additional authori- 
ties: Ex parte Newman, 2 Gallis. 11; Little's case, 2 Browne, 218; Anon. Peters' 
C. C. R. 457 ; Spratt v. Spratt, 4 Pet. 393 ; Ex parte Overington, 5 Binn. 371 ; 
Richards v. JScDaniel, 2 Nott & McCord, 351; Campbell v. Gordon, 6 Cranch, 176; 
McDaniel v. Richards, 1 McCord, 187 ; Starke v. Chesapeake Ins. Co., 7 Cranch, 420; 
Ritchie v. Putnam, 13 Wend. 524 ; Granstein's case, 1 Hill, 141 ; Charles v. Monson 
Man. Co., 17 Pick. 70; Towles' case, 5 Leigh, 743; Ex parte Paul, 7 Hill, 66; Banks 
v. Walker, 3 Barb. Ch. R. 438; Matter of Brownlee, 4 Eng. 191 ; Ex parte Smith, 
8 Blackf. 395 ; State v. Penney, 5 Eng. 621 ; Brown v. Shilling, 9 Md. 74 ; West v. 
West, 8 Paige, 433. 

8 See Dred Scott v. Sandford, 19 How. U. S. 393. 

9 2 Kent, 72 ; see The United States v. Rogers, 4 How. V. S. 567. 



CH. IX.] ALIENAGE AS AFFECTING DOWER. 183 

tinct tribes, living under the protection of the government. 1 The 
Attorney-General of the United States, in 1856, held that while the 
general statutes of naturalization do not apply to Indians, it was 
nevertheless clear that they may be naturalized by special act of 
Congress, or by treaty. 2 

60. Questions not unfrequently arise respecting the proper mean- 
ing to be attached to the word "white," as used in the naturaliza- 
tion acts, and what shades and degrees of mixture of color disqualify 
an alien from application for the benefits of those acts. In Virginia, 
by the statute of 1785, every person who has one-fourth part or 
more of negro blood is deemed a mulatto. 3 The rule is the same in 
Kentucky, 4 Arkansas, 6 and Florida. 6 In Indiana a person possessed 
of one-eighth or more of negro blood is disqualified from marriage 
with a white person, and the marriage is void. 7 In South Carolina 
all persons tinged with negro blood are adjudged mulattoes, and it 
is further held that mulattoes are not white citizens within the mean- 
ing of the law. 8 It is said to be the rule in Louisiana, and in the 
code noir of France for her colonies, that if the admixture of African 
blood do not exceed the proportion of one-eighth, the person is 
deemed white, 9 and this was formerly regarded as the proper rule in 
South Carolina. 10 In North Carolina it is provided that " no free 
negro, free mulatto, or free person of mixed blood, descended from 
negro ancestors to the fourth generation inclusive, (though one an- 
cestor of each generation may have been a white person,) shall vote 
for members of the senate or house of commons." 11 In Tennessee "a 
negro, mulatto, Indian, or person of mixed blood, descended from 
negro or Indian ancestors, to the third generation inclusive, though 



1 Goodell v. Jackson, 20 John. 693 ; Jackson u. Wood, 7 John. 290 ; Hastings v. 
Farmer, 4 Comst. 293; Dole v. Irish, 2 Barb. 639; The State v. Boss, 7 Yerger, 74; 
The State ». Managers of Elections, 1 Bailey, 215. 

2 Opin. Atto.-Gen. vol. vii. p. 746. 

» 12 Hen. Stat, at Large, 184 ; see Code of Va. ch. 103, <S 3 ; Gregory v. Baugh, 
4 Band. 611, 631 ; see Opin. Atto.-Gen. vol. i. p. 506. 
* 2 Rev. Stat, by Stanton, p. 359 ; 3 Dana, 359. 

5 Rev. Stat. Ark. 584. « Thompson's Dig. 537. 

' 2 Rev. Stat. Ind. 1852, p. 361, <S 1, sub. 2. 

8 State v. Hayes, 1 Bailey, 275 ; but see White v. Tax Collector, 3 Rich. 136-139 ; 
State ». Cantey, 2 Hill, S. C. 614. 

9 2 Kent, 9th ed. 72, note ; see, also, Bailey v. Fiske, 34 Maine, 77. 

10 State v. Davis, 2 Bailey, 658. 
» Rev. Code N. C. 23. 



18-1 THE LAW OF DOWER. [CH. IS. 

one ancestor of each generation may have been a white person, 
whether bond or free," is excluded from voting and being a witness 
in courts of justice against a white man. 1 In Georgia, if a person 
have less than one-eighth of African blood, he may exercise the 
rights and privileges of a freeman. 2 Other States have enactments 
of a similar character. In Ohio the rule is settled, as well under 
the constitution of 1802 as that of 1851, that all persons nearer white 
than black, are white persons within the meaning of the word 
" white" as employed in those instruments. 3 

61. It does not follow, however, that persons of the colored races, 
because they can not avail themselves of the naturalization laws, nor 
in any other manner become citizens in the full and appropriate 
sense of the term, are therefore excluded from all the rights of prop- 
erty. Blacks, whether born free or in bondage, if born under the 
jurisdiction and allegiance of the United States, are natives and not 
aliens. They are what the common law terms natural-born subjects. 
The term " citizen" is not confined to persons enjoying the rights 
of suffrage. A woman, a minor, a person temporarily incapacitated 
by pauperism or crime, is a citizen in one sense of the term ; that is 
to say, as distinguished from an alien. And, as a general rule, free 
persons of color, not subjects of a foreign power, may acquire, hold, 
devise, and transmit by hereditary descent, real and personal estate. 
But not being citizens in the full sense of the term, nor capable 
of becoming such under existing laws, they are subject to such 
disabilities as the States respectively may deem it expedient to 
prescribe. 4 Questions, important in their results, and sometimes 
pregnant with difficulty, occasionally grow out of the discordant 
legislation of the different States on the subject of citizenship, and 
the conflicting views of their judiciary in giving an interpretation to 
the word "white," with reference to that clause of the Constitution 
of the United States which declares that " the citizens of each State 
shall be entitled to all privileges and immunities of citizens of the 
several States." It is said by some of the commentators on the 

1 Con. Tenn. art. 4, g 1 ; Code Tenn. \ 3808 ; see The State v. Clairborne, Meigs, 331 . 

2 T. R. R. Cobb's New Dig. 531. 

s Williams v. School Directors, Wright's Rep. 579 ; Polly Gray v. The State, 4 
Ohio, 353; Thaeker v. Hawk, 11 Ohio, 376; Chalmers o. Stewart, Ibid. 386; Jef- 
fries v. Ankeny, Ibid. 372, 375 ; Lane v. Baker, 12 Ohio, 237 ; Stewart v. Southard, 
17 Ohio, 402 ; Anderson v. Millikin, 9 Ohio State, 568. 

2 Kent, 258, note ; see Opin. Atto.-Gen. vol. iv. p. 147, and vol. yu. p. 746. 



CH. IX.] ALIENAGE AS AFFECTING DOWER. 185 

Constitution, that every citizen of a State is, ipso facto, a citizen 
of the United States, 1 but in this they have been pronounced 
clearly mistaken. 2 And it is said to be certain that, by the legisla- 
tion of some of the States, persons are citizens there who are not 
citizens of the United States. At the same time it is conceded to 
be hazardous to deny all authority to those legislative acts of the 
different States which define the term "white man," and thus do in 
fact determine, as to Africans, the dividing line between incapacity 
and capacity for citizenship of the given State, and perhaps of the 
United States. 3 The important and perplexing questions thus aris- 
ing must be left to future judicial inquiry and determination. 



1 Story on the Con. sec. 1687; Rawle on the Constitution, p. 85. 

a Opinions Atto.-Gen. U. S. vol. vii. pp. 751, 752. 3 Ibid. 



CHAPTER X. 

OF THE NATURE AND QUALITIES OF THE PEOPEETY SUBJECT 

TO DOWER. 



\ 1. Introductory. 

2. Lands and tenements. 

3. Hereditaments real. 
4-10. Mines and quarries. 

11-24. Wild lands. 



\ 25-39. Shares in corporations. 

40. Water granted for hydraulic pur- 
poses. 

41, 42. Slaves. 



1. In considering the subject of dower, it is important to keep in 
view the distinction between the class or species of property upon 
which that right may attach, and the estate or degree of interest 
which must exist therein as a requisite to its inception. For exam- 
ple, land is a species of property which, as a general rule, is subject 
to dower ; but it is not upon every interest in land that this estate 
will attach, even though such interest may, in the full legal accepta- 
tion of the term, be regarded as real estate. Thus, an estate for life 
is an interest in land ; it is denominated real property ; but accord- 
ing to the rules of the common law it is not subject to dower. 1 
Again, there are classes of property which are not subject to dower 
because they are strictly personal in their nature, and with regard 
to these it makes no difference what the extent of the interest or the 
nature of the title may be. The inquiry, therefore, in respect of the 
property which may be subject to dower, involves considerations of 
a twofold character. First, as to the nature and qualities of the 
property itself, irrespective of the title by which it is held ; and sec- 
ondly, as to the interest or estate which it is essential should exist 
therein, in order to confer, as an incident thereof, the right of dower. 
One branch of this inquiry relates to the Res or Thing ; the other 
to the extent and duration of the right to the enjoyment thereof. 
To the consideration of the former the present chapter will be 
devoted. 

1 See post, ch. 17. 
(186) 



CH. X.] THE PROPERTY SUBJECT TO DOWER. 187 



Lands and tenements. 

2. The word Dower is a technical term, and in its legal significa- 
tion, as well as in its popular sense, is ordinarily understood to be 
applicable only to real property. 1 Littleton, in defining the estate 
of dower, says : " Tenant in dower is where a man is seized of cer- 
tain lands or tenements," &c. z Chief Justice Mansfield has remarked 
on this passage that Lord Coke makes no attempt to explain what is 
land, or what is a tenement, apparently impressed with the idea that 
the legal import of these terms was well known. 3 The word "tene- 
ments" is evidently here used by Littleton to denote such real prop- 
erty as does not necessarily lie in tenure ; for, although in its largest 
and most comprehensive sense the term includes corporeal inherit- 
ances, yet the connection with the word "lands," in which it is em- 
ployed in the present instance, would seem to direct its application 
more particularly to that species or right of property "which issues 
out of, or is annexed to, or is exercisable within," corporeal inherit- 
ances capable of actual seizin, and which, therefore, notwithstanding 
its unsubstantial and ideal nature, if the right be permanent, is im- 
pressed with the character of real estate. The term is properly 
applicable only to such property as is classed with realty, whereas 
the word "hereditaments," which is omitted by Littleton in his defi- 
nition of the estate of dower, has a more extended signification, and 
applies to rights purely of a personal nature as well as to those 
which savor of the realty. 

Hereditaments real. 

3. All hereditaments, whether corporeal or incorporeal, which 
savor of the realty, are, as a general rule, subject to dower. 4 The 
following instances, in which the right of dower in this description 
of property is recognized, are collected from the old books of the 



i Perkins v. Little, 1 Greenl. R. 148 ; Brockett v. Leighton, 7 Greenl. R. 383 ; 
Dow v. Dow, 36 Maine, 211 ; Lamar v. Scott, 3 Strobh. 562 ; Hill v. Mitchell, 5 Ark. 
608, 611. 

1 Litt. sec. 36; Perk. sec. 347. 

3 Stoughton v. Leigh, 1 Taunt. 409. 

*Co. Litt. 6, a., 19, b., 20, a., 154, a.; Watk. Conv. (20 Law Lib.) 38; Park, Dow. 
110, 111 ; Buckeridge v. Ingram, 2 Vesey, Jr; 663. 



188 THE LAW OF DOWER. [CH. X. 

law. 1 Dower may be had of a manor; 2 of an advowson, in gross or 
appendant; 3 of tithes, pensions, or other ecclesiastical profits which 
come to the crown by the statutes of 27 Hen. VIII., 31 Hen. VIII. , 
and 1 Ed. VI. 4 A rent service, 5 rent charge, 6 and rent seek 7 are 
also subject to dower. So of a common certain, in gross or append- 
ant. 8 And the widow has been held dowable of franchises, parcel of 
an honor. 9 And of all tenures of which a woman is capable. 10 But 
with regard to those things which usually lie in appendancy, as a 
common appendant, an advowson appendant, franchises appendant, 
and the like, it is to be remarked that they are not things to which 
the widow can make an independent, substantive claim for dower, 
for that would be to sever the appendancy. The right of dower in 
hereditaments of this description, many of which are indivisible in 
their nature, exists only where she is entitled to be endowed of the 
entirety of the thing to which they are appendant. 11 All liberties 
and profits savoring of the realty in which the husband is seized of 
an estate of inheritance, by the . common law are also subject to 
dower. 12 Thus, the widow has been held dowable of a piscary; 13 of 
ofiices, 14 such as the office of a bailiff or parker, 15 the office of the 
marshalsea of the King's Bench, 16 and of the custody of the jail of 

i Park, Dow. Ill, 112. 

2 Bragg' s case, Godb. 135 ; Gouldsb. 37. 

3 Fitzh. N. B. 148-50; Co. Litt. 32, a.; Perk. sec. 342, 343; Howard v. Cavendish, 
Cro. Jao. 621. 

* Co. Litt. 159, a., 32, a.; Thynn v. Thynn, Style's R. 99. 

6 Perk. sec. 345. « p er t. seo . 347. 

» Co. Litt. 32, a.; Perk. sec. 347. 

8 Perk. sec. 342 ; Fitzh. N. B. 148. See Godb. 21. 

9 Howard v. Cavendish, Cro. Jac. 622. 
1° Thynn v. Thynn, Style's R. 69. 

11 Hughes, Writs, 192 ; Park, Dow. 114, 115. Chancellor Kent remarks that "dower 
attaches to all real hereditaments, such as rents, commons in gross or appendant, 
and piscary, provided the husband was seized of an estate of inheritance in the 
same. But in these cases the wife is dowable only by reason of her right to be endowed 
of the estate to which they are appendant." 4 Com. 40, 41. This proposition does not 
appear to be stated with the usual precision and accuracy of that profound jurist. 
There are hereditaments real upon which the widow may make a substantive claim 
for dower, although she is not entitled to be endowed of the lands from which they 
issue. A rent-charge held in fee is an instance of this. Vide infra, ch. 18. 

12 Park on Dower, 112. 

is Co. Litt. 32, a.; Bracton, 98, 208; Brit. 247; Flet. 1, 5, c. 23. 

« Style's Pr. Reg. 122 ; Fitzh. N. B. 18, 149. 

» Co. Litt. 32, a.; Fitzh. N. B. 8, (K) raarg.; Perk. sec. 342 ; Gilbert on Dower, 371. 

is Co. Litt. 32, a.; Fitzh. N. B. 8, (K) marg. See Hughes on Writs, 192. 



CH. X.] THE PROPERTY SUBJECT TO DOWER. 189 

Westminster Abbey. 1 And she has been held dowable of a fair ; 2 a 
market; 3 a dove-house; 4 of courts, fines, heriots, kc.f and of a mill. 6 
And it is laid down by Perkins, that "if a man grant to me and my 
heirs to take yearly so many estovers in his wood in Dale, as I and 
my heirs will burn in the same manor of Dale, and I take a wife and 
die, my wife shall not have dower of the estovers;" 7 but "if a man 
grant to me and my heirs to take yearly out of his meadow three 
loads of hay, and I take a wife and die, my wife shall have dower 
thereof." 8 He adds, however, "tamen quaere." In respect of the 
doubt thus suggested by Perkins, Mr. Greening, in a note to this 
section, remarks: "It is difficult to imagine any ground for this 
queer e, unless from an apprehension that such a grant gave a mere 
personal privilege; but it would give an estate in fee simple; 9 and 
the profit being a hereditament lying in prendre, the wife is dowable 
of it as of a common in gross, or tithes." 10 

In Kentucky it has been held that where the husband dies seized 
of a ferry, the widow may be endowed of one-third the profits, or of 
the use of it for a third of the time, in alternate periods. 11 

Mines and quarries. 

4. In the early case of Comyn v. Kyneto, 12 decided in the 2d of 
James I., it was insisted in argument, "that an ejectment lies not 
of a coal mine because it is quoddam proficuum subtus solum, and 
an habere facias possessionem can not be had thereof." But the ob- 
jection was not allowed; "for," said the court, "it is a profit well 
known, and whereof the law takes bon conusance, and therefore an 
ejectment well lies thereof. And Tanfield said it was adjudged in 
this court in the case of Mr. Wyld, that an ejectment lies of a boyl- 
lary of salt ; and it was cited to be likewise here adjudged between 

i Co. Litt. 32, a.; Theloal. Dig. 67, lib. viii. cap. 5, sec. 2. 

2 Co. Litt. 32, a.; Fitzh. N. B. 8, (K) n.; Bro. Ass. pi. 471; Fitzh. Sci. Fa. 122; 
Gilb. Uses, 371. 
a Gilb. Uses, 371 ; Fitzh. N. B. 8, (K) n. * Co. Litt. 32, a. " Ibid, 

e Perk. sec. 342 ; Gilb. Uses, 371 ; Fitzh. N. B. 8, (K) a. * Sec. 341. 

8 Sec. 343, referring to the following authorities: 12 Ed. 3, Dower, 157; 11 Ed. 2, 
Dower, 85. 

9 Stoughton v. Leigh, 1 Taunt. 402. 

i» Note to sec. 343, Greening's ed. of Perkins. 

11 Stevens v. Stevens, 3 Dana, 373. 

12 Comyn v. Kyneto, Cro. Jac. 153. 



190 THE LAW OP DOWER. [CH. X. 

Lawson and Williams that this action will lie for a coal mine." It 
has been remarked that this is the first case in which it was held that 
ejectment would lie for a coal mine. 1 On the strength of this de- 
cision, and the additional authorities referred to in the note, 2 Mr. 
Burton has not hesitated to state it as a clear proposition in law that 
mines may be made the subject of conveyance by livery, if actually 
opened; and that an interest in mines unopened may exist inde- 
pendently of any estate in the surface of the land. 3 

5. It has accordingly been held, and is generally understood to 
be the law, that dower may exist in mines or quarries if they have 
been opened during the lifetime of the husband. In the case of 
Thynn v. Thynn, 4 which arose in the 23 of Charles I. (1648,) dower 
had been assigned in a stone quarry, after judgment by default. 
Upon writ of error brought to reverse the judgment, and set aside 
the proceedings under which the assignment had been made, -it was 
contended, among other points raised in support of the writ of error, 
that dower could not be had in a quarry of stones. Holhead, for 
the plaintiff in error, argued as follows : " Here is a demand of dower 
of such things whereof dower lies not, viz. of a quarry of stones, and 
it appears not that the quarry was open in the life of her husband ; 
and if it were, yet it is improper to demand it by the name of a 
quarry." To which Hales, for the widow, replied: "The word 
quarry is a good word, and well known what it means: for quarrera 
is an old well known Latin word for it, and she is as well dowable of 
it as of a mine of coals, and it shall be intended to be open, because 
she demands it by the name of a quarry." On a subsequent argu- 
ment, Twisden, of counsel for the plaintiff in error, pressed the objec- 
tion still further: "A third exception was that dower is recovered of 
a thing not dowable, viz. of a quarry of stones, for if she would be 
dowable of a quarry of stones, this would be to the destruction of 
the inheritance, and indeed it is impossible, for a quarry of stones 
can not be divided by metes and bounds, which must be if she should 
be endowed of it. And also if the mine and quarry should be divided, 

i In Whittington v. Andrews, 1 Show. 364 ; S. C. 1 Salk. 255 ; 4 Mod. 143. 

2 Co. Litt. 6, a.; Prest. Touch. 96; Barnes v. Mawson, 1 M. & S. 77; E. of Cardi- 
gan ii. Armitage, 2 B. & C. 197; Seaman v. Vawdrey, 16Ves. Jr. 390. 

» Burton on Beal Prop. sec. 1164, (23 Law Lib.) This doctrine appears to be 
well established both in England and the United States. See 1 Washb. B. P. p. 5, 
\ 12, and authorities there cited. 

* Thynn v. Thynn, Style'B Pr. Beg. 67, 68. 



CH. X.] THE PROPERTY SUBJECT TO DOWER. 191 

the tenant of the land would be prejudiced ; and that a quarry can 
not be divided see Cooks' Lit. 164, and so it was adjudged 2 lac. 
upon a reference to the judges." In answer to this objection, May- 
nard, for the defendant in error, " argued that a feme is dowable of 
a quarry, and that it may be divided by metes and bounds, for it 
may be divided by the profits, although it can not be divided by the 
quantity of the thing." 1 Although the case was argued at six differ- 
ent times upon the various questions involved, it does not appear to 
have ever come to a decision upon the merits. According to the 
report given by Styles, it finally went off on a technical objection to 
the writ of error. 2 In the case of Hoby v. Hoby, 3 decided in 1683, 
the right of a widow to be endowed of a coal mine was recognized 
without question; and in the more recent case of Stoughton v. Leigh, 4 
it became necessary for the court to consider very fully the rights of 
a dowress in property of this description. In that case the husband 
was the owner of several mines and strata of lead and coal, some of 
them in lands of which he was himself seized in fee, and others in 
lands of third persons. In the latter the mines and strata had been 
granted to him in fee simple. Some of these mines and strata had 
been opened and wrought, and others not. On a case sent from the 
Court of Chancery to the Court of Common Pleas, the judges of the 
latter court certified that the widow was dowable of all her husband's 
mines of lead and coal, as well of those which were in his own landed 
estates, as of the mines and strata of lead, or lead ore, and coal, in 
the lands of other persons, which had in fact been opened and wrought 
before his death, and wherein he had an estate of inheritance ; and 
that her right to be endowed of them had no dependence upon the 
subsequent continuance or discontinuance of working them, either by 
the husband in his lifetime, or by those claiming under him since his 
death. The report of this case is quite full, and it is usually referred 
to as the leading case upon the subject. 5 

6. Mr. Park, in his work on Dower, has the following observa- 
tions with regard to some of the points ruled in the foregoing case : 
" It could scarcely be intended by the court that the widow was dow- 
able of the mines in her husband's own lands as substantive heredita- 



i Page 99. 2 Sty. 67, 77, 91, 98, 101, 143. 

» Hoby v. Hoby, 1 Vern. 218. 

1 Stoughton v. Leigh, 1 Taunt. 402. 

6 See Park on Dower, 116; 2 Koper, Husb. and Wife, 342, 343. 



192 THE LAAV OF DOWER. [CH. X. 

ments. Those mines were parcel of the inheritance, and her life 
interest in the lands themselves, or rather in her third part of them, 
carried with it the legal right to the benefit of such of the mines 
included in that third part as were opened. That this was all the 
court meant to express might be gleaned from their observations 
upon the mode in which the assignment was to be made by the sheriff 
of the husband's own lands. 'It was not absolutely necessary,' 
they remarked, ' that he should assign to her any of the open mines 
themselves, or any portions of them. The third part in value which 
he should assign to her might consist wholly of land set out by metes 
and bounds, and containing none of the open mines. Or he might 
include any of the mines themselves in the assignment to the widow, 
describing them specifically, if the particular lands in which they 
should lie should not also be assigned ; but if those lands should be 
included in the assignment, the open mines within them might, but 
were not necessarily to be so described, being part of the land itself 
which was assigned ; and as the working of the open mines was not 
waste, the tenant in dower might work such mines for her own exclu- 
sive profit;' i.e. by directing separate alternate enjoyment for short 
periods. These observations seem fully to admit, what the writer 
apprehends to be without doubt the real state of the law, that the 
wife is dowable of opened mines in her husband's lands as parcel 
of the inheritance, and not as distinct and collateral inheritances. 
Mines in a man's own lands are clearly so far from being distinct 
inheritances, that they are merely a mode of enjoyment. The right 
to the soil is the right to the profits of it, subject only to such restric- 
tions as the law has imposed upon the owners of particular estates 
with respect to the mode of enjoying those profits. On the other 
hand, it is difficult to understand how the admission that the sheriff 
might assign particular mines not within the lands assigned to her, 
is to be rendered consistent with this view of the law. If the wife is 
entitled to the benefit of mines in her husband's lands, merely in 
respect of her interest in the particular lands under which they lie, 
how can that benefit be extended to mines under other lands of her 
husband to which she is a stranger ? As well might it be said that 
the sheriff might endow her of a clump of trees in lands which are 
not included in the assignment of her dower. If she is endowed of 
the land itself upon which the trees grow, she has that interest in 
the trees which the law allows to a tenant for life, but if the land is 
not assigned to her, she can not be substantively endowed of the trees. 



CH. X.] THE PROPERTY SUBJECT TO DOWER. 193 

The mines being equally parcel of the inheritance as the trees, are 
in the same predicament. These considerations will probably ac- 
count for the circumstance which struck the court with some surprise 
that no mention was made of mines by Lord Coke in enumerating 
the species of inheritance of which a woman shall be endowed. . . . 
With regard to the mines and strata under the lands of other per- 
sons, the subject might, perhaps, have merited further consideration. 
Assuming the law to be that an interest of that nature, though in 
itself perishable, is yet capable of being granted in fee, it may be 
made a question, if a woman is dowable in any case of such property, 
how the circumstance of the mines being opened or unopened can 
make any difference; the analogy wholly failing between such prop- 
erty, and mines in the lands of her husband, which are parcel of the 
inheritance. In the latter case her right to work opened mines arises 
as a mode of enjoyment, to which, in respect to her interest in the 
lands, she is entitled ; while the denial of her right to open the mines 
not wrought by her husband, arises solely from the restricted nature 
of her interest in the lands. On this point the law was well stated 
by Lens, Sergeant, in argument on this case: 'Where mines have 
been actually wrought as part of the estate of the husband, they may, 
be collaterally subject to dower with the rest of his real property. 
But mines have never been assigned as in their own nature liable to 
dower. The interest of tenant in dower is a life estate only ; but an 
interest which can enable the possessor to open mines must be an 
estate of inheritance, for it is an act of waste in a tenant for life.' 
This doctrine is wholly inapplicable to the case of grants of strata in 
the lands of a third person to the husband in fee. In that case work- 
ing the mine is the only mode of enjoyment of which the property is 
capable, and if such a property were granted to A. for life, remainder 
to B. in fee, it would be difficult to understand how B. could main- 
tain waste against A. for opening the mine, when it is obvious that 
A. is to have some interest, and the denying his right to open the 
mine, is in effect denying that that interest is to confer any species 
of enjoyment. If mines are unopened in a man's own lands, nothing 
short of an ownership of the inheritance will enable him to open and 
work these mines ; but if he grants the mines substantively to an- 
other, it would be a new doctrine to contend that he must grant an 
estate of inheritance in order to confer a right of taking the benefit 
of the grantee." 1 

i Park, Dow. 117-20. 
VOL. I. 13 



194 THE LAW OF DOWER. [CH. X. 

7. However well founded this criticism may appear, it is to be 
remarked that the rule, as declared in Stoughton v. Leigh, has been 
generally approved by the text writers, and recognized in practice 
by the courts. 1 

8. The first case in the United States in which the question arose 
appears to be that of Coates v. Cheever. 2 In that case the contro- 
versy was respecting the right of a widow to be endowed of a rich 
and valuable bed of iron ore contained in the lands of the husband, 
which had been opened and worked by him, but had afterwards been 
abandoned and partially filled up during his lifetime. It appeared, 
however, that the vein was capable of being rendered very produc- 
tive, and in reality constituted the chief value of the premises. The 
question was considered at length by the court, and the claim for 
dower sustained. Stoughton v. Leigh was referred to in the discus- 
sion, and received the unqualified indorsement of the court. 

9. In Billings v. Taylor, 3 a husband died seized of a tract of land 
of about fifty acres, four of which contained a slate quarry partially 
above ground. One-quarter of an acre of the quarry had been dug 
over by taking a section of ten or twelve feet square, and so going 
down to the usual depth, and then beginning on the surface again. 
It was held that the widow was entitled to dower in the whole quarry. 
In Maine, upon the same principle, lime quarries are held subject to 
dower,* and it has been decided in Virginia that it is not waste for a 
tenant in dower to take coal to any extent from a mine already 
opened, or to sink new shafts in the same veins of coal. It was 
further determined that she may penetrate through a seam already 
opened, and dig into a new seam that lies under the first. 5 

10. The reports are barren of adjudged cases upon this subject, 
but so far as any are to be found, they agree in the proposition that 
if mines be unopened during the lifetime of the husband, they are 
not subject to dower. But if once opened, it is not necessary that 

i Macq. H. & W. 170; 1 Cruise, tit. 6, ch. 2, \\ 1-32; Burton on Real Prop. 
1 1164 ; Smith on Real and Per. Pr. 137 ; 4 Kent, 41 ; 1 Washb. on Real Prop. p. 5, 
I 12 ; 1 Hilliard on Real Prop. 2d ed. p. 140, \ 9 ; The King v. Dunsford, 2 Adol. & 
El. 568, 593 ; Quarrington v. Arthur, 10 M. & W. 335. 

2 Coates v. Cheever, 1 Cow. 460. 

s Billings v. Taylor, 10 Pick. 460. 

1 Moore v. Rollins, 45 Maine, 493. 

6 Findlay v. Smith, 6 Munf. 134 ; Crouch v. Puryear, 1 Rand. 258 ; accord. 
Spencer v. Scurr, Master of the Rolls Court, 10 Weekly Rep. 878 ; 25 Month. Law 
Rep. 121. 



CH. X.] THE PROPERTY SUBJECT TO DOWER. 195 

the husband should have worked them down to the time of his death ; 
nor that the working should be continued by the heir. This point is 
expressly ruled in Stoughton v. Leigh and Ooates v. Oheever, and 
this holding does not appear to have been seriously called in ques- 
tion since the determination of those cases. 1 The distinction taken 
between mines which have been opened and those which have not, 
appears to rest upon the theory that it is an act of waste for a dow- 
ress, or any other tenant for life, to open mines, and therefore it is 
not permissible for her to do so. Bracton states it as one of the 
principles regulating the right of dower, that a widow can not claim 
a thing in dower unless she may use and enjoy it sine vasto exilio et 
destructione. 2 But Mr. Burton gives entirely a different reason for 
this rule. An interest in unopened mines on the lands of another, 
unaccompanied by any estate in the surface of the land, and where 
no possession has been taken, he likens to an estate in remainder, 
and supposes that no right of dower attaches upon such interest, 
upon the same principle that it is excluded from estates in remainder. 3 

Wild lands. 

11. In some of the States it is provided by law that wild lands 
shall not be subject to dower. Thus, the Revised Statutes of Massa- 
chusetts contain the following provision : — 

A widow shall not be endowed of wild lands of which her husband shall die 
seized, nor of wild lands conveyed by him, although they should be afterwards 
cleared ; but this shall not bar her right of dower in any wood lot, or other land 
used with the farm or dwelling house, although such wood lot or other land 
should have never been cleared. 4 

12. But the question whether a widow was entitled to dower in 
unimproved lands held separately from improved estates, was mooted 
in Massachusetts prior to the passage of the act above referred to, 
and appears to have created much perplexity in the minds of the 
judges. In the case of Conner v. Shepherd, 5 where this point came 

1 See authorities cited ante, \ 7, note 1 ; and Moore v. Rollins, 45 Maine, 493. 

2 Brae. 316, pi. 1, 2 ; accord. Gilb. on Dower, 390, 391. 
8 Burton, Real Prop. § 1164. See post, ch. 15. 

*Rev. Stat. Mass. (1836,) p. 410, ch. 60, <S 12; Gen. Stat. Mass. (I860,) p. 47,0, 
ch. 90, I 12. 

6 Conner v. Shepherd, 15 Mass. 164. But the Supreme Court of Massachusetts, 
in a case decided in 1783, held that dower was assignable in wild lands. Nash v. 
Baltwood, Story's Pleadings, 366. "* 



196 THE LAW OF DOWER. [CH. X. 

up for adjudication, it was determined that lands in a state of nature 
were not subject to dower. " Upon this question," remarked Parker, 
Chief Justice, " we have had considerable difficulty. By the common 
law, the widow is dowable of all the real estate of which her husband 
was seized during the coverture, with the exception only of a castle 
erected for public defence, of a common in gross, and some other 
kinds of estate not known in this country. The question whether 
forests, parks and other property of a similar nature, are also excep- 
tions, seems never to have occurred : probably because there is no 
instance in Great Britain, of any such property held separately and 
distinct from improved and cultivated estates. 1 In this country, on 
the contrary, there are many large tracts of uncultivated territory 
owned by individuals, who have no intention of reducing them to a 
state of improvement, but consider them rather the subjects of specu- 
lation and sale, or as a future fund for their posterity, increasing in 
value with the population and improvements of the country. If dower 
could be assigned in estates of this nature, the views of those who 
purchase such property would be obstructed ; and an impediment to 
their transfer would be created, and in many instances the inherit- 
ance would be prejudiced, without any actual advantage to the widow, 
to whom the dower might be assigned. For, according to the prin- 
ciples of the common law, her estate would be forfeited if she were 
to cut down any of the trees valuable as timber. It would seem, too, 
that the mere change of the property from wilderness to arable or 
pasture land, by cutting down the wood and clearing up the land, 
might be considered as waste; for the alteration of the property, 
even if it become thereby more valuable, would subject the estate in 
dower to forfeiture ; the heir having a right to the inheritance in the 
same character it was left by the ancestor. It is not an extravagant 
supposition that land actually in a state of nature may, in a country 
fast increasing in its population, be more valuable than the same land 
would be with that sort of cultivation which a tenant for life would 
be likely to bestow upon it ; and then the very clearing of the land 
for the purpose of getting the greatest crops with the least labor, 
which is all that could be expected from a tenant in dower, would be 
actually, as well as technically, waste of the inheritance. There 
would seem, then, to be no reason for allowing dower to the widow in 

1 Perkins says "a ■woman shall be endowed of lands, tenemenlB, woods, &c.;" 
sec. 347. 



CH. X.J THE PROPERTY SUBJECT TO DOWER. 197 

property of this kind. If she did not improve the land, the dower 
would be wholly useless ; if she did improve it, she would be exposed 
to disputes with the heir, and to the forfeiture of her estate after 
having expended her substance upon it. But this is not all. It is 
well understood by the common law, and the principle has been re- 
peatedly settled in this court, that the dower of the widow is not to 
be assigned so as to give her one third of the land in quantity, but 
so that she may enjoy one third of the rents and profits or income 
of the estate. Now of a lot of wild land, not connected with a culti- 
vated farm, there are no rents and profits. On the contrary, it is an 
expense to the owner, by reason of the taxes. The rule, therefore, 
by which dower is to be assigned, can not be applied to such prop- 
erty. . . . Upon the whole, seeing no possible benefit to the widow 
from an assignment of dower in such property ; and on the contrary 
believing that it would operate as a clog upon estates designed to be 
the subject of transfer ; and finding that the principles upon which 
the estate of dower rests at common law are not applicable to a case 
of the kind before us, we feel constrained to say that the demandant 
can not maintain her action." 

13. The question again came up in a somewhat different form in 
Webb v. Townsend. 1 In' that case the lands in which dower was de- 
manded had been alienated by the husband while they were in a state 
of nature, but were subsequently improved and brought under culti- 
vation by the grantee of the husband. Counsel for the demandant 
attempted to distinguish this case from Conner v. Shepherd upon the 
ground that at the date of the husband's death the lands were im- 
proved, and might therefore be enjoyed by the widow without the 
commission of waste. But the court denied the claim of the widow, 
holding, first, in conformity to the views expressed in Conner v. Shep- 
herd, that unimproved lands were not subject to dower ; and secondly, 
that the demandant could have no benefit from the improvements or 
labors of the purchaser. "It has been determined," said the court, 
"that when land of which a widow is dowable shall have been in- 
creased in value by a grantee of the husband, her dower shall be 
assigned according to the value of the land when alienated. In the 
case before us, when the alienation took place, the land was in a 
state of nature, and the demandant could not have had dower. At 
the time when dower was demanded, the land had become a culti- 

i Webb v. Townsend, 1 Pick. 21. 



198 THE LAW OF DOWER. [CH. X. 

vated farm, but altogether by the labor of the grantee or those who 
claim under him." 

14. The case of White v. Willis 1 presented the question whether 
dower is demandable in a lot of wild land where it is used in connec- 
tion with the dwelling-house and improved land of the husband. The 
point was determined in the affirmative. The court say : "The plea 
sets forth a good bar, but the replication avoids it, by saying that 
the woodland was used as an appendage to the dwelling-house and 
cultivated land for the purpose of procuriog fuel, and timber for re- 
pairs. We know of no authority for the suggestion that the dowress 
has a right to take fire-bote, &c, without an assignment of her dower 
in the wood lot. This case is distinguished from those heretofore 
decided respecting dower. The court have limited the disallowance 
of dower to wild land which is not used with the homestead or with 
cultivated land." 

15. But in White v. Cutler, 2 the right of a widow to cut and take 
wood and timber from woodland assigned her as part of her dower 
estate, was limited strictly to such wood and timber as were neces- 
sary for the supply of that estate, to be actually applied and con- 
sumed upon the estate, or for purposes connected with the proper 
use and enjoyment thereof. In that case, after the assignment of 
dower, the dwelling-house became untenantable, and was taken down. 
The widow removed from the premises, and took up her residence in 
another family, where she was supplied with fuel. It was held that 
neither the widow nor the lessee of her estate had a right to cut the 
wood thereon for fuel. 

16. In a still later case it was determined that a widow was dow- 
able of land which, at the time it was owned by the husband, was a 
wood and pasture lot, situated at the distance of a mile from his 
homestead, and separated therefrom by lands of other persons, but 
used by him as a pasture appurtenant to the homestead, although 
such land had since become overrun with bushes, and was not pro- 
ductive. The court were of opinion that land might be cleared of 
bushes without committing waste, and thus be rendered productive ; 
and they added that land covered with bushes is oftentimes useful 
for pasturage. 3 

17. The same rule prevails in Maine, where the Massachusetts 

i White v. Willis, 7 Pick. 193. ' White v. Cutler, 17 Pick. 248. 

3 Shattuck v. Gregg, 23 Pick. 88. 



CH. X.] THE PROPERTY SUBJECT TO DOWER. 199 

statute above cited is adopted verbatim. 1 The rigbt to dower in 
land used for the purposes of pasture and fuel at the time of the 
alienation by the husband, was sustained in the case of Mosher v. 
Mosher. 2 But in Khun v. Kaler, 3 where the husband had conveyed 
a portion of his woodland during coverture, reserving, however, suffi- 
cient to supply wood for fuel and other purposes connected with the 
usual and proper enjoyment of the estate, dower was refused in the 
portion so conveyed. 

18. In Stevens v. Owen 4 this case arose : During the coverture the 
husband was seized in fee of a five-acre lot of land, partially im- 
proved and partly covered with bushes, and unfenced, and while in 
this condition the lot was conveyed by the husband. It was decided 
by the court that if wild lands lie contiguous to, and are in any manner 
used with an improved estate, as for fuel, fencing, repairs, pasturing,. 
&c, they are subject to dower, and upon this principle dower was 
awarded the widow in the lot above mentioned. 

19. An early New Hampshire statute was substantially the same 
as the statutes of Massachusetts and Maine. 6 By the first section it 
was provided that no widow " shall be entitled to dower in any lands 
whereof her husband was seized during the marriage, unless such 
lands were in a state of cultivation during such seizin, or were used 
and kept as a wood or timber lot, and considered as appurtenant to 
some farm or tenement at the same time owned by the husband of 
such woman." The second section declared " that when any per- 
son, who in his lifetime was seized of lands or tenements cultivated 
or improved, and shall lose or part with his title therein, and shall 
afterwards die leaving a widow having right of dower in the same, 
such widow shall be endowed of one third part in value of such land, 
with the buildings thereon, according to the value thereof at the time 
such husband so lost or parted with his title thereto ; and such widow 
shall also be endowed of such part of said lands as will produce an 
income equal to one third part of the income which such lands pro- 
duced at the time such husband lost or parted with the title therein, 
and not otherwise." 

i Rev. Stat. Maine, (1840-41,) 391, ch. 95, \ 2; Rev. Stat. Maine, (1857,) p. 605, 
ch. 103, \ 2. 

2 Mosher v. Mosher, 3 Shep. 371 ; approved in Durham v. Angier, 20 Maine, 242. 

3 Khun v. Kaler, 2 Shep. 409. * Stevens v, Owen, 12 Shep. 94. 

5 1 N. H. Laws, 190, \\ 1, 2; accord. Rev. Stat. 1842, ch. 165, \\ 4, 7 ; N. H. 
Comp. Laws, (1853,) p. 420, ch. 175, \\ 4, 5. 



200 THE LAW OP DOWER. [CH. X. 

20. Under this statute a question arose whether it was necessary 
that the lands in which dower was claimed should not only he in a 
state of cultivation, but also in a condition to yield a net income. 
The difficulty as to the true construction of the act originated in the 
peculiar wording of the second section, directing that the widow 
should be endowed of such part of the lands as would produce an 
annual income equal to one-third part of the income which the entire 
tract produced at the time the husband parted with his title thereto, 
and not otherwise. The court were of opinion that it was not neces- 
sary that the lands should produce any income in order to entitle 
the widow to dower therein; that it was only necessary that they 
should be in a state of cultivation, which condition was defined 
to be that which is converse to a state of nature ; " and whenever 
lands have been wrought with a view to the production of a crop," 
observed the court, " they must be considered as becoming and con- 
tinuing in a state of cultivation, until abandoned for every purpose 
of agriculture, and designedly permitted to revert to a condition 
similar to their original one." 1 By the present statute of New Hamp- 
shire the dowress is entitled to take fuel to burn in her dwelling- 
house, although she do not reside on the land. 2 

21. But in many of the States a different rule exists, and dower 
is allowed in all the lands of the husband, whether they have been 
improved or are in a state of nature. The old Virginia colony act 
of 1664 expressly placed cleared land and woodland upon the same 
footing in this respect, 3 and the adjudged cases are to the same ef- 
fect. " The law of waste, in its application here," said Cabell, Judge, 
in Findlay v. Smith, 4 "varies and accommodates itself to the situa- 
tion of our new and unsettled country." In the same case, Roane, 
Judge, expressed himself as follows : " In considering what is waste 
in this country, it is to be remarked that the common law, by which 
it is regulated, adapts itself in this, as in other cases, to the varied 
situation and circumstances of the country. That can not be waste, 
for example, in an entire woodland country, which would be so in a 
cleared one. The contrary doctrine would starve a widow, for ex- 
ample, who could not subsist without cultivating her dower land, 



1 Johnson v. Perley, 2 N. H. 56. 
' N. H. Comp. Stat. (1853,) p. 420, ch. 175, | 7. 
' 2 Hen. Stat, at Large, 212 ; ante, ch. 2, <S 4. 
1 Findlay v. Smith, 6 Munf. 134. 



CH. X.] THE PROPERTY SUBJECT TO DOWER. 201 

nor cultivate it without felling the timber. A clearing of the land 
in such circumstances would not be a lasting damage to the inherit- 
ance, nor a disinherison of him in the remainder, which is the true 
definition of waste. It would, on the contrary, be beneficial." 1 

22. In Ohio the question was first presented in the case of Allen 
v. McCoy, 2 and was argued with much ability and research by the 
counsel engaged. The court manifested no hesitancy in determining 
the point in favor of the widow. " The second question," they ob- 
served, in passing upon this phase of the case, " in what seems to 
the court the appropriate order for considering the points in the case, 
is, can the widow claim to be endowed of lands lying wild and un- 
cleared of timber, during the husband's seizin, and at the time of the 
alienation ? This question is raised upon a technical nicety of the 
common law. One of the incidents attached to a dower estate is its 
forfeiture for waste, and a prominent act of waste is converting wood- 
land into arable. Thus, it is argued, dower in wild lands is a useless 
property. It can be of no value to the widow in its wild state, and 
it can not be reduced to cultivation without forfeiting the estate itself. 
This argument is too subtle to be received as premises for the con- 
clusion it seeks to enforce. The common law doctrine of waste has 
never been recognized in Ohio, either as an incident of title, or as 
affording a remedy for wrong." 

23. So in Michigan, 3 Kentucky, 4 Illinois, 5 and Georgia, 6 the widow 
is held to have a right of dower in the wild, uncultivated lands of 
her husband. In New York, in Walker v. Schuyler, 7 dower was 
claimed in lands that were wild and uncultivated at the time they 
were aliened, and it seems not to have been doubted that the right 
attached. In Pennsylvania, tenants in dower are allowed to clear 
wild lands, not exceeding a just proportion of the whole tract. 8 

1 Accord. Macauley v. Dismal Swamp Land Co., 2 Rob. 507. 
» Allen v. McCoy, 8 Ohio Rep. 418. 

3 Campbell, Appellant, 2 Doug. 141. 

4 Hickman v. Irvine, 3 Dana, 121. 

5 Schnebly v. Schnebly, 26 111. 116. But where unimproved lands were situate 
some three miles distant from the farm occupied by the husband, it was held that 
the widow was not authorized to retain possession thereof under the provision of 
the statute giving her the right to occupy the dwelling-house, plantation, &c, until 
her dower was assigned, free of rent; Hoots v. Graham, 23 111. 81. 

6 Chapman v. Schroeder, 10 Geo. 321. 

'Walker v. Schuyler, 10 Wend. 480; see, also, Jackson v. Brownson, 7 John. 
227 ; Jackson v. Sellick, 8 John. 202. 
8 Hastings v. Crunckleton, 3 Yeates, 261. 



202 THE LAW OP DOWER. [CH. X. 

"It would be an outrage on common sense," the court remarked in 
the case cited, " to suppose that what would be waste in England 
could receive that appellation here." In North Carolina the dow- 
ress may convert timber into staves and shingles, where such has 
been the ordinary, and is the only beneficial use she can make of the 
land. 1 It was held in the case referred to that " it is not waste to 
clear tillable land for the necessary support of a family, though tim- 
ber be destroyed in the clearing, nor to cut wood for fences." In 
Tennessee the widow may cut down timber for any necessary uses, 
if enough be left for permanent use, and the estate is not materially 
injured. 2 So it has been held in that State that a widow may cut 
timber on one part of the land to fence another part, although the 
reversion of the respective parcels belongs to different persons. 3 In 
Rhode Island dower is allowed in woodland by express statute. The 
commissioners to assign dower are required to estimate the annual 
growth of the trees on the premises, and set off one-third thereof, 
either by the number of cords or quantity of land. 4 

24. In the absence of any express legislation on the subject, the 
question whether a widow is dowable of wild lands, depends very 
much upon the extent to which the courts have gone in adopting the 
rigid rules of the common law respecting the doctrine of waste. In 
several of the older States the common law is held to be in force. 
In others, and perhaps in a majority of them, the strict rule obtain- 
ing in a highly cultivated country like England, is considered inap- 
plicable in a comparatively new and unsettled country like ours, and 
is therefore received with such modification as properly adapts it 
to the condition of things existing with us. And it may be here 
stated, as a general principle, that in those States where a tenant 
for life is authorized, either by express statute, or by a judicial ex- 
position of the law of waste, to clear a reasonable proportion of wild 
lands, and fit them for cultivation, a widow is entitled to be endowed 
of such lands, and to exercise thereon all the rights and privileges 
commonly permitted to tenants for life. 5 



1 Ballentine v. Poyner, 2 Hayw. 110 ; see, also, Parkins t>. Coxe, Ibid. 339. 

2 Wilson v. Smith, 5 Yerg. 379; see Combs v. Young, 4 Yerg. 218. 

3 Owen v. Hyde, 6 Yerg. 334. 

* R. I. Stat. (1840,) 2022; Public Laws of R. I. (1844,) p. 188, \ 2. 
5 1 Hilliard, Real Prop. 2d ed. 141, 142, \ 12. 



CH. X.] THE PROPERTY SUBJECT TO DOWER. 203 



Shares in corporations. 

25. Shares in incorporated companies are generally considered 
personal property, and this without reference to the nature of the 
property held by them, or the business in which they may be engaged. 
At the present day when a company is incorporated, it is usual to 
provide, by express enactment, that the stock of such company shall 
be deemed personalty. But the absence of such provision would not, 
it is apprehended, materially affect tha question, for the weight of 
authority is decidedly in favor of the proposition that shares in cor- 
porations are to be held and treated as personal estate at common 
law. Hence, shares in the stock of an incorporated company are 
not, as a general rule, subject to dower. 

26. But this question is not entirely free from difficulty. Cases 
are to be found in the reports which appear to conflict with the con- 
clusion above expressed. A distinction has also been taken between 
the case of lands vested in a joint-stock company as a corporation, 
and not in the individual shareholders of such company, and of lands 
vested in the shareholders, with a grant of the mere power of man- 
agement to the corporation. In the latter case the shares of the 
company have been held real estate. 

27. The case of Drybutter v. Bartholomew, 1 decided in 1723, is one 
of the earliest cases bearing upon this question found in the reports. 
It involved the question as to the interest of the shareholders in the 
property of the New River Company, and whether that interest was 
personalty or realty. The company had its origin in the statutes of 
3 James I., chapter 180, and 4 James I., chapter 12. The latter act 
enlarged, to some extent, the privileges created by the former. By 
virtue of these enactments, power was conferred on the mayor, com- 
monalty, and citizens of London, to supply the city with water. By 
the first act the mere right to cut alieno solo was given ; the property 
in the land was reserved to the owner. 2 The second act gave to the 
city liberty to erect a trunk or vault. These statutes created no stock, 
nor was any mention made in them of shares or shareholders. The 
city afterwards conveyed the right thus conferred upon them to Sir 
Hugh Middleton, who commenced the contemplated work, but died 



i Drybutter v. Bartholomew, 2 P. Wms. 127. 

2 See New River Company v. Graves, 2 Vera. 431, where the act was so oonstrued. 



204 THE LAW OF DOWER. [CH. X. 

before it was completed. The right subsequently became vested in 
a variety of persons, and the new proprietors procured for themselves 
an act of incorporation, and although no provision was made for the 
creation of shares under the original charter to the city, yet it ap- 
pears from the case of Drybutter v. Bartholomew above referred to, 
as well as Townsend v. Ash, 1 decided in 1745, that under the act of 
incorporation, shares in the company were actually created ; 2 and in 
both these cases such shares were held to be real estate. The cases 
are very briefly reported, and it seems to have been assumed without 
controversy that the shares bore the character thus ascribed to them. 

28. It appears, however, that the form of the New River Compa- 
ny's act of incorporation, and of its charter, and of the original con- 
veyance to Sir Hugh Middleton, was applicable to real property 
only. The land was not vested in the corporation of London, but 
in the individuals. 3 The corporation was incidental to the purposes 
of management only, and was not seized of the land. This is as- 
sumed by the Lord Chancellor in Townsend v. Ash, 4 and he placed 
his decision in that case expressly upon the ground that the individ- 
ual corporators had the property, and the corporation only the man- 
agement of it. 5 These cases, therefore, though sometimes referred 
to as showing that stock in a water-works company is real estate, do 
not, when carefully considered, fairly support that position. They 
may be regarded as authority, to some extent, however, for the dis- 
tinction noted in a preceding section, 6 with reference to the nature 
of the interest of the shareholders in the corporate property where 
it is vested in them individually, and not in the body corporate, as 
is usually the case/ 

29. In Buckeridge v. Ingram, 8 decided in 1795, shares in the 
navigation of the River Avon, under the statute of 10 Anne, were 
held to be real estate, and subject to dower, and the authority of this 

i Townsend v. Ash, 3 Atk. 336. 

2 See Wordsworth on Joint-Stock Comp. (39 Law Lib.) 288, 289; Johns v, Johns, 
1 Ohio St. Rep. 350, 351. 

3 Per Lord Abinger in Bligh v. Brent, 2 You. & Coll. 288. 

4 3 Atk. 337, 338; and see judgment of Alderson, B., in Bligh v. Brent, 2 You. & 
Coll. 295. 

6 Per Park, B., in Bligh v. Brent; Wordsw. on Joint-Stock Comp. (39 Law Lib.) 
289. 

« Sec. 26. 

7 Accord. Swayne v. Fawkener, Show. P. C. 207 ; see, also, Lord Sandys v. Sib- 
thorpe, 2 Dick. 545 ; Lord Stafford v. Buckley, 2 Ves. Sr. 170, 182. 

8 Buckeridge v. Ingram, 2 Ves. Jr. 652. 



CH. X.J THE PROPERTY SUBJECT TO BOWER. 205 

case has since been recognized in several other cases. 1 By the statute 
of 10 Anne, the mayor, aldermen and common council of the City of 
Bath, their successors or assigns, or such persons as they should ap- 
point, were authorized to improve the navigation of the River Avon, 
and to charge tolls on persons and property transported thereon. 
By an agreement executed between the corporate authorities of the 
one part, and the Duke of Beaufort and several other persons on the 
other part, the duke and his associates undertook to do the work in 
consideration of being allowed to take the tolls. By the eleventh 
article of the agreement, it was provided that " no survivorship shall 
at any time take place between the said parties and undertakers ; 
but if any or either of them shall happen to die, the share or part 
of such so dying, shall descend and go to the heirs and assigns of 
the party or parties so dying." The master of the rolls held that 
the right to take the tolls was an incorporeal hereditament aris- 
ing out of realty, and therefore " a tenement." He observed : "I 
have no difficulty in saying that wherever a perpetual inheritance is 
granted which arises out of lands, or is in any way connected with, 
or, as it is emphatically expressed by Lord Coke, exercisable within 
it, is that sort of property the law denominates real." One import- 
ant feature in this case is sometimes overlooked. The company or 
association that succeeded to the rights and duties of the City of 
Bath, under the power of appointment contained in the original act, 
was not incorporated, 2 in which respect it differed from the New 
River Company, and the point decided really did not touch the 
question whether shares in the stock of a corporation are real or 
personal property. With regard to both these companies, it is re- 
marked by Mr. Wordsworth, that the property given to them was 
real property, which they were to manage for the good of all. They 
had no power of converting it into any other description of property, 
but they were to keep it, and make profit of it as real estate. And 
further, the shares were transferable to the shareholders and their 



30. But the more recent English cases, while, perhaps, they do 
not disturb the authority of the older cases above noticed, in so far 
as they establish the doctrine that where lands are vested in the 



1 Howse v. Chapman, 4 Ves. Jr. 542 ; Finch v. Squire, 10 Ves. Jr. 42 ; The King 
v. Bates, 3 Price, 357 ; The Earl of Portsmouth v. Bunn, 1 Barn. & Cress. 703. 

2 See Wordsw. on Joint-Stock Comp. (39 Law Lib.) 290. 3 Ibid. 



206 THE LAW OP DOWER. [CH. X. 

shareholders and not in the body corporate, the shares are to be 
treated as real estate, nevertheless agree in declaring and maintain- 
ing a different result where the corporation is clothed with the legal 
title. One of the most important of these is Bligh v. Brent, 1 which 
involved the question whether shares in the Chelsea Water-works 
Company were realty or personalty. The act of incorporation left 
the question open, as it contained no declaration on the subject. 
The effect of the act was thus stated by Mr. Baron Alderson : " In 
the first place, there is a corporation to whose management the joint- 
stock of money subscribed by its individual corporators is entrusted. 
They have power of vesting it at their pleasure in real estate, or in 
personal estate, limited only as to amount, and altering from time 
to time the species of property which they may choose to hold ; and 
in order to give them greater facilities and advantages, certain pow- 
ers are entrusted to the undertakers by the legislature, and that even 
before they were constituted a body corporate, of laying down pipes, 
and thereby occupying land for the purposes of their undertaking. 
These powers render the use of joint-stock by the body corporate 
more profitable, but they form no part of the joint-stock itself; and 
one decided test is this, that, they belong inalienably to the corpora- 
tion, whereas all the joint-stock is capable expressly of being sold, 
exchanged, varied or disposed of, at the pleasure of the corporate 
body. It is of the greatest importance to look carefully at the na- 
ture of the property originally entrusted, and that of the body to 
whose management it is entrusted ; the powers that body had over 
it, and the purposes for which these powers are given. The property 
is money ; the subscriptions of individual corporators. In order to 
make that profitable, it is entrusted to a corporation, who have an 
unlimited power of converting part of it into land, part into goods, 
and of changing and disposing of each from time to time ; and the 
purpose of all this is the obtaining a clear surplus profit from the 
use. and disposal of this capital for the individual contributors. The 
shares of the ' Chelsea Water-works Company' are, therefore, per- 
sonal estate." This question, with reference to the same company, 
had previously been decided the same way in Weekley v. Weekley ; 2 
and in Bradley v. Holdsworth, 3 determined in 1838, which involved the 



i Bligh v. Brent, 2 You. & Coll. 268, 294. 

2 Weekley v. Weekley, 2 You. & Coll. 281. 

» Bradley v. Holdsworth, 3 Meeson & Welsby, 422. 



CH. X.J THE PROPERTY SUBJECT TO DOWER. 207 

question whether shares in the " London and Birmingham Railway" 
might be sold by verbal contract, the ruling in Bligh v. Brent was 
referred to with approbation. Alderson, B., said : " All the cases 
were under review in Bligh v. Brent, where the question was as to 
shares in the Chelsea Water works Company. That was a stronger 
case than the present, because there was no clause of this kind in 
the act of Parliament, and yet the shares were held personal prop- 
erty." The clause referred to expressly declared that the shares 
should to all intents and purposes be deemed personal estate, and 
transmissible as such, and should not be of the same nature of real 
property. But it is evident from what was said, that independently 
of this provision, the same decision would have been made. " I con- 
ceive," added Alderson, B., "that all the shareholders would take 
even without such a clause." And Park, B., said: "No doubt the 
company are seized of real property, as well as possessed of a great 
deal of personal property ; but the interest of each individual share- 
holder is a share of the net produce of both when brought into one 
fund." So in Duncuft v. Albrecht, 1 it was held that a parol agree- 
ment for the sale of railway shares is valid, upon the ground that 
they are neither an interest in lands, nor goods, wares or merchan- 
dise, within the statute of frauds. In Watson v. Spratley 2 the same 
doctrine was applied to a contract for the sale of shares in a mining 
company managed on the cost-book principle. And to the same 
effect are the cases cited in the note. 3 

31. In the United States there is some diversity among the au- 
thorities upon this question. In the case of Welles v. Cowles, 4 
decided by the Supreme Court of Connecticut, in 1818, it was held 
that shares of an incorporated turnpike company are real estate. 
"The right to the tolls," said the court, "is a right issuing out of 
real property, annexed to and exercisable within it ; and comes within 
the description of an incorporeal hereditament of a real nature, on 
the same principle as a share in the New River, in canal navigation, 
and tolls of fairs and markets." It was claimed in the argument 

i Duncuft v. Albrecht, 12 Sim. & Stu. 189. 

2 Watson v. Spratley, 28 Eng. Law and Eq. 507. 

s Hargreaves v. Parsons, 13 Meeson & Welsby, 561 ; Humble v. Mitchell, 2 Railw. 
Cas. 70; S. C. 11 Ad. & Ellis, 205; Tempest v. Kilner, 3 C. B.249; Knight v. Bar- 
ber, 16 Meeson and Welsby, 66; see, also, Pickering v. Appleby, 1 Comyns' R. 354; 
Colt v. Nettervill, 2 Peer Wms. 304; Heseltine v. Siggers, 1 Exch. 856. 

* Welles v. Cowles, 2 Conn. 567. 



208 THE LAW OP DOWER. [CH. X. 

that the individual stockholders had only a claim on the company, 
and not upon the realty, and that this must be of a personal nature. 
In disposing of this view of the case, the court remarked : " But the 
stockholders, as members of the company, are owners of the turn- 
pike road ; and it is in virtue of this interest that they have their 
claims for the dividends, or their respective shares of the toll. It 
is not a mere claim on the corporation." This decision was recog- 
nized as law in 1822, in a suit between the same parties, though the 
question was not expressly made. 1 

32. In Binney's case, 2 decided in Maryland, the court said : " The 
whole estate of the Chesapeake and Ohio Canal Company, at least 
so far as it consists of the canal itself, and its necessary buildings, 
and the fixtures attached to them, must, according to the common 
law, be regarded as realty ; and it was so considered by the original 
act of incorporation, but by a subsequent enactment it has been de- 
clared that it should be deemed personal property." In regard to 
the effect of this provision, the court added : " It appears that direct- 
ing the estate of this corporation to be deemed personal property, 
can amount to no more than declaring it shall be governed by the 
municipal regulations of the country where it lies, in relation to per- 
sonal property, instead of those in relation to real estate, but that it 
must, nevertheless, be governed by those laws, and none other, as 
being an immovable portion of the habitation of the nation." In 
Cape Sable Company's case 3 it was decided that the language of the 
act incorporating that company, declaring "that the lands, tene- 
ments, stock, property, and estate" of the company, "is and shall 
be held as real estate, and shall descend as such, agreeably to the 
acts of assembly in such cases made and provided," applied, at least 
so far as the personalty was concerned, only as among the stock- 
holders themselves, and not as between them and third persons. 

33. In Hurst v. Meason, 4 decided in 1835, the Supreme Court of 
Pennsylvania held that " a toll bridge erected by two individuals 
across a river between their lands, by legislative authority, is real 
estate." The court maintained that in such case there was "not 
only a right arising out of the soil, but, so far as the abutments of 



1 Welles v. Cowles, 4 Conn. 182. 

2 Binney's case, 2 Bland's Ch. 99, 145, 146. 

3 Cape Sable Company's case, 3 Bland's Ch. 606, 670. 

4 Hurst v. Meason, 4 Watts, 346. 



CH. X.] THE PROPERTY SUBJECT TO 'DOWER. 209 

the bridge are concerned, it is the soil itself." It is to be remarked 
with respect to this case, however, that it does not appear that the 
builders of the bridge ever procured an act of incorporation. And 
the later cases of Gilpin v. Howell and Slaymaker v. Gettysburg, 1 
seem to be against the doctrine of that decision. 

34. In Price v. Price's Heirs, 2 the Court of Appeals of Kentucky, 
in 1838, held that stock in the Lexington and Ohio Railroad Com- 
pany is real estate. Without referring to any adjudicated case, the 
court came to a conclusion which is thus expressed : " The right con- 
ferred on each stockholder is unquestionably an incorporeal heredita- 
ment. It is a right of perpetual duration ; and though it springs out 
of the use of personalty, as well as lands and houses, this matters 
not. It is a franchise which has ever been classed in that class of 
real estate denominated an incorporeal hereditament." 

35. Upon the other side we have decisions in Massachusetts, New 
York, Vermont, Ohio, Alabama, Tennessee, North Carolina, and 
Rhode Island. 

36. The question came before the Supreme Court of Massachu- 
setts as early as 1798, in the case of Russell v. Temple, 3 and it was 
held that shares in incorporated bridge and canal companies are per- 
sonalty. The case was between the widow and heirs of Thomas 
Russell, the former contending that the shares were personal prop- 
erty, and that consequently she was entitled to a distributive portion 
of them, and the latter insisting that they were realty, and that 
therefore the widow had but a dower estate. " The principal reason 
of the decision," says Dane, "appears to be because the court con- 
sidered that the individual member, or shareholder, had only a right 
of action for a sum of money, his part of the net profits or dividends. 
And so the law has been held to be since this decision was made." 
In support of this opinion we have the observations of Parsons, Ch. J., 
in Tippets v. Walker, 4 where, in speaking of a turnpike company, he 
uses the following language : " When the road is made, the corpora- 
tion is entitled to demand and receive a toll of travelers for the use 
of it, in trust for the members of the corporation, in proportion to 
their respective shares. The property of every member is a right 
to receive a proportional part of the tolls, which is considered as 



1 Gilpin v. Howell, 5 Barr, 57 ; Slaymaker v. Gettysburg, 10 Barr, 373. 

2 Price v. Price's Heirs, 6 Dana, 107. 

s 3 Dane's Abr. 108, \\ 2-6. * Tippets v. Walker, 4 Mass. 596. 

VOL. I. 14 



210 THE LAW OF DOWEK. [CH. X. 

personal estate." And in Howe v. Starkweather, 1 Parker, Ch. J., 
remarks : " Shares in a turnpike or other incorporated company are 
not chattels. They have more resemblance to choses in action, being 
merely evidence of property." 2 The same doctrine, substantially, is 
held in the cases cited in the note. 3 

37. In Ohio this subject has recently undergone a very thorough 
discussion. In the case of Johns v. Johns, 4 the question was directly 
presented whether shares in a railway company are personal or real 
estate. The proceeding was for dower in certain shares of railroad 
stock held by the husband of the demandant at the time of his de- 
cease. The authorities were carefully examined by the court, and 
the learned judge who delivered the opinion went very fully into the 
consideration of the question in all its bearings. The result was 
adverse to the claim of the widow, the court being unanimously of 
opinion that the shares were personal property. "A careful exam- 
ination of the adjudications upon the subject," the court observed, 
"has brought us to the conclusion that, according to the weight of 
authority, the shares in question are personal property. In the 
early English cases the distinction, now well understood, between 
the property of a corporation and the rights of its members, does not 
seem to have been taken, and it appears to have been assumed that 
each shareholder had an estate in the corporate property, and that 
consequently, if that property was real, his share was also realty. 
But the cases we have cited abundantly show that the distinction 
above mentioned is now fully recognized in England, and that the 
property of a corporation may be mainly, if not wholly real, and yet 
the shares of its members be personalty." The court further re- 
marked : " It must be admitted, however, that the definition of Lord 
Coke, cited with approbation in Buckeridge v. Ingram, 8 sustains the 
position that the franchise was a tenement savoring of the realty; 
for, in the language of Coke, it was 'exercisable within lands.' And, 



1 Howe v. Starkweather, 17 Mass. 243. * 

2 See, also, Tisdale v. Harris, 20 Pick. 9 ; Bank of Waltham v. Waltham, 10 Met. 
334; Hutchins v. State Bank, 12 Met. 421. 

• Wheelock v. Moulton, 15 Verm. 519 ; Isham v. Ben Iron Co. 19 Verm. 230 ; Den- 
ton v. Livingston, 9 John. 96 ; Arnold v. Ruggles, 1 K. Is. 165 ; MoDougal v. Hep- 
burn, 5 Flor. 568 ; Union Bank v. State, 9 Yerger, 490 ; Brightwell v. Mallory, 10 
Verger, 196 ; Planters' Bank v. Merchants' Bank, 4 Ala. 753 ; Heart v. State Bank, 
2 Dev. Ch. 111. 

4 Johns v. Johns, 1 Ohio St. 350. 6 See ante, § 29. 



OH. X.] THE PROPERTY SUBJECT TO DOWER. 211 

as before stated, we prefer to place our decision upon the distinction 
between tbe estate of the corporation and the individual rights of its 
members, rather than upon a distinction between the cases in which 
the profit arises wholly out of realty, and those in which it springs 
partly from realty, and partly from personalty, though this latter 
distinction seems to receive much support from both reason and 
authority." 1 

38. Mr. Parsons gives the following as the rule properly deducible 
from the authorities : " Generally, in this country, and in England, 
the stock of a corporation is personal property; and this is so, even 
though the whole property of the corporation be real, and the whole 
of its business relate to the care of real estate ; if it be the surplus 
profit alone that is divisible among the individual members. But 
where lands are vested, not in the corporation, but in the individual 
shareholders, and the corporation has only the power of manage- 
ment, in that case the stock or shares are real property." 2 

39. Professor Greenleaf states the rule substantially to the same 
effect : " Shares in the property of a corporation are real or personal 
property, according to the nature, object and manner of the invest- 
ment. Where the corporate powers are to be exercised solely in 
land, as where original authority is given by the charter to remove 
obstructions in a river and render it navigable, to open new chan- 
nels, &c. to make a canal, erect water-works, and the like, as was the 
case of the New River water, the navigation of the River Avon and 
some others, and the property or interest in the land, though it be 
an incorporeal hereditament, is vested inalienably in the corporators 
themselves, the shares are deemed real estate. Such, in some of the 
United States, has been considered the nature of shares in toll- 
bridge, canal and turnpike corporations by the common law; though 
latterly it has been thought that railway shares were more properly 
to be regarded as personal estate. But where the property origin- 
ally entrusted is money, to be made profitable to the contributors by 
applying it to certain purposes, in the course of which it may be 
invested in lands or in personal property, and changed at pleasure, 
the capital fund is vested in the corporation, and the shares in the 
stock are deemed personal property, and as such are in all respects 
treated. In modern practice, however, shares in corporate stock, of 

i See, also, State v. Franklin Bank, 10 Ohio Rep. 91, 97; Walker's Intr. 211. 
2 2 Parsons on Con. 315. 



212 THE LAW OF DOWER. [CH. X. 

whatever nature, are usually declared by statute to be personal 
estate." 1 

Water granted for hydraulic purposes. 

40. The case of Kingman v. Sparrow 2 presented the question 
whether dower is demandable in a right granted to take and use 
water for hydraulic purposes. In the year 1824-5, the State of 
New York, in the course of the construction of the Erie Canal, and 
as part of that work, erected in the bed of a portion of the Niagara 
River, what is known as the Black Rock dam. A harbor was also 
created at the same point. In January, 1827, the Canal Commis- 
sioners, in pursuance of authority conferred by law, " demised, leased, 
bargained, sold, and conveyed" to certain parties, "the right and 
privilege of taking and using, then and at all times thereafter, for 
hydraulic purposes, such and so much of the surplus waters of said 
canal at Black Rock, as can be taken under the sale," without inter- 
fering with the due and proper use of the canal and harbor. The 
lessees covenanted on their part to pay an annual rent for the right 
and privilege thus granted, a failure to make payment to operate as 
a forfeiture of their rights. In April, 1833, the Canal Commission- 
ers, upon the application of the lessees, passed resolutions in refer- 
ence to the location of buildings and machinery, so as to enable the 
lessees to use the surplus water, and under this authority, mills and 
a storehouse were erected on the dam, and upon piles in the harbor. 
The water power granted as above stated was employed in operating 
these mills. The husband of the demandant died vested with an 
undivided interest in this property and water power, and dower was 
claimed, not only in the mills and the premises upon which they were 
situate, but also in the right to the use of the water conferred by the 
State. Upon full consideration of the case, the court held that the 
right to take the water for hydraulic purposes was not subject to 
dower. "The Canal Commissioners," they remarked, "only sold, 
demised, &c. 'the right and privilege of taking and using at all times, 
for hydraulic purposes,' a portion of the surplus waters of the canal 
at Black Rock. This was a mere right and privilege to use surplus 
waters. There could be no dower in such a right. Nor did the per- 

i 1 Greenl. Cruise, 39, <S 3 ; accord. Kedf. on Railw. 38, 39 ; Pierce on Railw. 127 ; 
1 Hilliard on Real Prop. 73 ; see 3 Kent, 340, note, 5th edition. 
2 Kingman v. Sparrow, 12 Barb. 201. 



CH. X.] THE PROPERTY SUBJECT TO DOWER. 213 

mission which the Canal Commissioners gave, by the resolutions of 
1833, to erect buildings in the river, and upon the dam, create any 
estate in the lessees of the privilege to use water, of which a widow 
of one of them could be endowed." 1 



Slaves. 2 

41. The statutes of Virginia, 3 Kentucky, 4 Arkansas, 6 and Mis- 
souri 6 confer upon the widow a right of dower in slaves. In Arkan- 
sas and Missouri the right is limited to such slaves as were possessed 
by the husband at the time of his death. 7 In Kentucky, under the 
early statutes, it was repeatedly decided that the husband might 
emancipate his slaves by will, and that in such case his widow had 
no right to be endowed thereof, although she renounced the will. 8 
But a nuncupative will was deemed insufficient to pass slave property 
in that State, and, therefore, where the widow renounced the provi- 
sions of such a will, she was held dowable of her husband's slaves. 9 
And now, by statute, the emancipation of slaves by will is not to affect 

1 See, also, Buckingham v. Reeve, 19 Ohio, 399. 

2 "She shall be endowed of villeins regardant." 2 H. 6, 11, b. "So she shall be 
endowed of villeins in gross, for this is an inheritance." 2 H. 6, 11, b.; Vet. Nat. 
Br. 7, b. "And so of villein appendant, and the writ shall be de libero tenemento." 
Br. Dower, pi. 91. "She shall be endowed of a villein, either the third day's work, 
or every third week or month." Co. Lift. 32, a., 164, b., 307, a. "For in him a 
man may have an estate in fee, or fee tail, or for life, or years." 9 Vin. Ab. tit. 
Dower, 212, pi. 3, 4, and marg. note. 

8 Act of March 2d, 1819, 1 Rev. Code 1819, ch. Ill, p. 435, § 60; p. 439, \ 70; 
Page v. Page, 2 Rob. 424. The earliest statute in this country recognizing dower 
in Blaves is the Virginia act of 1705, ch. 23, \\ 9-11 ; 3 Hen. Stat, at Large, 334-5. 

i Rev. Stat, of Ky. by Stanton, vol. i. p. 425, \ 14 ; vol. ii. p. 27, \ 14 ; Rev. Stat. 
1852, p. 282, \ 14; p. 394, § 14; Smiley v. Smiley, 1 Dana, 94; McCans v. Board, 
Ibid. 340 ; Lee u. Lee, Ibid. 48 ; Brewer v. Van Arsdale, 6 Dana, 204 ; Triggs v. 
Daniel, 2 Bibb, 301 ; Graham v. Sam, 7 B. Mon. 403 ; Northcutt v. Whipp, 12 B. 
Mon. 65. 

5 Rev. Stat. (1838,) p. 339, <S 20; Dig. of Stat. (1848,) p. 448, \ 20; Dig. Stat. 
(1858,) p. 453, I 21 ; Cook v. Cook, 7 Eng. 381 ; Arnett v. Arnett, 14 Ark. (1 Barb.) 
57; Welch v. Cole, Ibid. 400; Hill v. Mitchell, 5 Ark. 608; Morrill v. Menifee, 
Ibid. 629. 

s Rev. Stat. Misso. (1845,) ch. 54, p. 430, \ 2; Walls v. Coppedge, 15 Misso. 448. 

» Rev. Stat. Ark. (1838,) p. 339, \ 20; Dig. of Stat. (1858,) p. 453, \ 21 ; Rev. 
Stat. Misso. (1845,) p. 430, \ 2. 

8 Lee v. Lee, 1 Dana, 48 ; Brewer v. Van Arsdale, 6 Dana, 204 ; Graham v. Sam, 
7 B. Mon. 403. See, also, Northcutt v. Whipp, 12 B. Mon. 65. 

9 McCans v. Board, 1 Dana, 340. 



214 THE LAW OP DOWER. [CH. X. 

the right of dower therein where the widow elects to take under the 
law. In such case the widow is to be compensated to the extent of 
her interest in the slaves emancipated, from the other personal estate 
of the husband, if enough remain after payment of the debts. If 
part only of the slaves be set free, her share is to be taken from 
those not emancipated, if there be enough. If any part of those set 
free is necessary to make up her share, all the slaves emancipated 
are to be hired out, and the hire paid to her until she is compensated 
for her share. 1 The Virginia statute of 1819 contains a similar 
provision. 2 

42. In Arkansas the right of dower in slaves is held to embrace 
the increase aocruing between the death of the husband and the time 
of the allotment of dower. 3 But, as above stated, the right does not 
attach until the death of the husband. And where the husband had 
disposed of slaves by gift during his lifetime ; and where, also, slaves 
of the husband had been seized during his lifetime, on execution, and 
sold after his death, it was held that no claim of dower existed in 
either case. But the husband can not defeat his wife's dower in his 
slaves by emancipating them by will. If she renounce the will, her 
right to be endowed is unimpaired. 4 

i Rev. Stat. Ky. (1852,) p. 282, § 14; 1 Stanton's Rev. p. 425, £ 14. 

2 1 Rey. Code 1819, p. 435, \ 60. 

3 Menifee v. Menifee, 3 Eng. 9. 
i Grow a. Powers, 19 Ark. 424. 



CHAPTER XL 

OF THE NATURE AND QUALITIES OF THE ESTATE SUBJECT TO 

DOWER. 



\ 1. Introductory. 
2, 3. The estate must be one that the 
issue of the wife might inherit. 

4. Not necessary that the wife should 
have issue. 

5. It must confer a right to the im- 
mediate freehold. 

6. 7. Incorporeal hereditaments gov- 
erned by the same rule. 

8, 9. The husband must be vested 
with the freehold and inheritance simul 
et semel. 



§ 10. There must be no intervening 
freehold estate. 

11, 12. Intervening chattel interest no 
impediment to dower. 

13-15. Determination of the interme- 
diate estate during the coverture gives 
dower. 

16-34. Effect of intervening contin- 
gent freehold remainder. 

35. The vesting of such remainder 
defeats dower. 

36, 37. Effect of intervening possi- 
bility. 



1. Having seen what property, with respect to its nature and 
qualities, is subject to dower, we come next to the consideration of 
the character of the estate, or degree of interest in such property, 
with which the husband must be invested, in order to enable the 
right of the wife to attach. 

The estate must be one that the issue of the wife might inherit. 

2. This doctrine relates more particularly to estates held in tail 
special. A case for its application is thus stated by Littleton : " If 
tenements be given to a man and the heirs which he shall beget of 
the body of his wife, although i the husband die without issue, the 
same wife shall be endowed of the same tenements, because the issue 
which she, by possibility, might have had by the same husband, might 
have inherited the same tenements. But if the wife dieth, living 
her husband, and after, the husband takes another wife, and dieth, 
his second wife shall not be endowed in this case." 1 



1 Litt. sec. 53; Bro. Dow. pi. 36 ; Finch's Law, b. 2, c. 3, pp. 125, 126 ; 2 Saund. 
Rep. 45, n. note 5 ; Perk. sec. 301, 302 ; Reeve's Dom. Rel. 40 ; see Spangler v. 
Stanler, 1 Md. Ch. Decis. 36. 

(215) 



216 THE LAW OF DOWER. [CH. XI. 

3. It is to be observed, however, that under the law of entailments, 
cases may arise, where, although the issue of the wife might, by pos- 
sibility, inherit the estate, yet no right of dower would attach in her 
favor. It is essential to her right that the issue should be able to 
take not only as heir to the father, but also in virtue of a seizin by 
him during the coverture upon which her claim to dower is founded ; 
for although the issue might take as heir to the husband in respect 
of some other estate which he has in him in right, or in remainder, 
this alone would not confer dower. 1 The following case is presented 
by way of elucidation of this principle : " If a man be tenant in fee 
tail general, and make a feoffment in fee, and taketh back an estate 
to him and to his wife, and to the heirs of their two bodies, and they 
have issue, and the wife dieth, the husband taketh another wife and 
dieth, the wife shall not be endowed, for, during the coverture, he 
was seized of an estate tail special, and yet the issue which the sec- 
ond wife may have, by possibility may inherit." 2 Here, the only 
estate of which the husband had a seizin during the coverture of the 
second wife, was not inheritable by her issue, being an estate to him 
and the heirs of the body of himself and his first wife ; and yet the 
issue of the second wife mighj;, by possibility, inherit the elder estate 
tail, which was a tail general, and, in default of issue of the first 
wife, would actually succeed to that estate. 3 The same general doc- 
trine is thus stated by Perkins : " If tenant in general tail take a 
wife, and enfeoff a stranger, and take back an estate to him and his 
wife in special tail, and the wife dies, and he takes another wife, and 
hath issue and dies, the second wife shall not be endowed ; yet the 
issue is remitted to the general tail." 4 

In many of the States the rule of the common law, allowing es- 
tates to be entailed, is abolished. As to those States the distinctions 
above discussed are, practically, of but little importance. 5 



1 Park on Dow. 79. 

2 Co. LiU. 31, b.; Bro. Dow. pi. 18. 3 Park on Dow. 80. 

4 Perk. sec. 302. " If this was intended of the issue of the second wife, who are 
the only issue mentioned, and which the context seems to require, there could he no 
remitter, because the defeasible estate tail never descended on such issue, they not 
being inheritable to it. The real case, however, in the books, was, that the issue 
was by the first wife, which removes the difficulty." Park, 80, note. 

5 See post, ch. 13, gg 3-6. 



CH. XI.] THE ESTATE SUBJECT TO DOWER. 217 

Not necessary that the wife should have issue. 

4. It is not essential to the attachment of dower that the wife 
should actually have issue by her husband : the possibility of issue 
is sufficient. She must, according to the common law, be of such 
an age at the death of her husband as to have had a ■possibility 
of conceiving, or bearing children, and this age the law contem- 
plates to be nine years. 1 But the law does not set any bounds 
to the possibility of having issue at the most advanced age ; and it 
has been decided that if a man marry a woman one hundred years 
old, she shall have her dower, though by possibility of nature she 
can not have issue. 2 The reason for this rule assigned by Lord Coke 
is as follows : " Seeing that women in ancient times have had chil- 
dren at that age whereunto no woman doth now attain, the law can 
not judge that to be impossible which by nature was possible ; and 
in my time a woman above threescore years old hath had a child, 
and ideo non definitur in jure." 3 

It is believed not to be essential to the right of dower in any case 
that the wife should be physically capable of bearing children. 
Dower is a right incident to marriage, and at this day the possibility 
of having issue can hardly be regarded as a prerequisite to the in- 
ception of the estate. If, by the law of the place where the mar- 
riage is contracted, the wife is competent to enter into that contract, 
and the marriage be valid in other respects, the necessary effect 
would seem to be to clothe her with all the rights pertaining to the 
marital relation. And if the marriage remain undissolved during 
the life of the husband, it seems clear that the widow would be enti- 
tled to dower, even though it were rendered absolutely certain that 
by reason of physical malformation, or other cause, she was utterly 
incapable of bearing children. 4 

The estate of the husband must confer a right to the immediate 

freehold. 

5. This is an essential requisite at the common law. Dower is 
not allowed in estates in remainder or reversion expectant upon an 

i Vide supra, ch. 8, \\ 11-17; Park, Dow. 81. 

2 2 Danv. 652; Bro. Dow. pi. 36; Co. Litt. 40, a.; Roll. Abr. 657. 

s Co. Litt. 40, a.; 2 Bl. Com. 131 ; Tud. Cas. 45. 

* Supra, ch. 7, \\ 1, 2 ; ch. 8, §19; and see 1 Washb. on Real Prop. 1£3. 



218 THE LAW OP DOWER. [CH. XI. 

estate of freehold, and hence if the estate of the hushand he subject 
to an outstanding freehold estate which remains undetermined during 
the coverture, no right of dower attaches. 1 But, in order to exclude 
dower, the preceding estate must be a freehold interest. An estate 
for years, or other mere chattel interest, furnishes no impediment to 
a title of dower. 2 This distinction is placed upon the ground that 
such an interest does not interfere with the seizin of the immediate 
freehold, but rather protects and preserves that seizin, the possession 
of the party having the chattel interest being regarded as the pos- 
session of the owner of the freehold. 3 Interests of this character 
may postpone the enjoyment of dower, but they do not prevent the 
estate from attaching. Thus, where a testator directed that if his 
personal estate should be insufficient for the payment of his debts 
and certain legacies given by his will, his executors should pay the 
same out of the rents and profits of his real estate ; and subject to 
the payment of such debts and legacies, he devised his real estate in 
tail to his son, who married and died before the debts were paid, and 
before taking possession, it was held that the executors had but a 
chattel interest in the estate, and that the widow of the son was en- 
titled to dower. 4 It is said, however, that in a case of this descrip- 
tion, the endowment can not take place until all the debts have been 
satisfied. 5 Upon the principle above stated, it is supposed that if 
the husband's seizin of the inheritance be subject to a statute staple, 

iCo. Litfc. 32, a.; Perk. sec. 339, 340; Park, Dow. 38, 49, 53, 54; 1 Roper on 
Husb. and Wife, by Jacob, 359; 1 Greenl. Cruise, 162, §8; 4 Kent, 38-40 ; Stearns' 
Real Act. 285 ; 1 Washb. Real Prop. 154, \\ 5, 6 ; Blood v. Blood, 23 Pick. 80; Otis 
u. Parshley, 10 N. H. 403 ; Dunham v. Osborn, 1 Paige, 634 ; Eldredge v. Forrestal, 
7 Mass. 253; Fisk v. Eastman, 5 N. H. 240; Moore v. Esty, Ibid. 479; Arnold v. 
Arnold, 8 B. Mon. 202 ; Apple v. Apple, 1 Head, (Tenn.) R. 348; Blow». Maynard, 
2 Leigh, 30. But in Kentucky this principle does not extend to a remainder in 
slaves; Northcutt v. Whipp, 12 B. Mon. 65. The reader is referred to chapter 15, 
where the subject of dower in reversionary estates, and estates subject to a prior 
claim for dower, is treated at length. 

2 Park, Dow. 53, 77, 78 ; 1 Roper, H. and W. by Jacob, 361 ; 1 Roll. Abr. 670, 
pi. 7; Bro. Dow. pi. 89; Co. Litt. 32, a., 296, a.; Bates v. Bates, 1 Lutw. 729; 
S. C. 1 Ld. Raym. 326; 1 Greenl. Cruise, 162, § 8; 1 Washb. Real Prop. 154, g 8; 
4 Kent, 39 ; Weir v. Humphreys, 4 Ired. Eq. R. 273. 

3 1 Roper, H. and W. by Jacob, 361 ; Park, Dow. 77; Co. Litt. 32, a. 

* Hit chen v. Hitchen, 2 Vern. 403 ; S. C. Prec. in Ch. 133 ; 2 Freem. 311 ; Cor- 
dell's case, stated in Manning's case, 8 Co. 96, a.; Co. Litt. 42, ».; Perk. sec. 335 ; 
2 Crabb's Real Prop. 150; Tud. Cas. 43; Weir v. Humphreys, 4 Ired. Eq. R. 273. 

s 1 Roper, Husb. and Wife, by Jacob, 373 ; 1 Greenl. Cruise, 157, \ 23; 2 Crabb's 
Real Prop. 150, 151 ; Hitchen v. Hitchen, 2 Vern. 403. 



CH. XI.] THE ESTATE SUBJECT TO DOWER. 219 

statute merchant, or an elegit, the wife's dower will attach, as those 
estates are but chattel interests. 1 



Incorporeal hereditaments governed by the same rule. 

6. The same general doctrine is applicable to incorporeal heredit- 
aments. If the freehold be suspended during all the time of the 
coverture, no right of dower attaches. This is illustrated by a case 
put with respect to the husband's curtesy in a seigniory, the same 
principle applying to dower : " If a tenant make a lease for life, of 
the tenancy to the seignioress, who taketh a husband, and hath issue, 
the wife dieth, he shall not be tenant by the curtesy ; but if the 
lease had been made but for years, he shall be tenant by the cur- 
tesy." 2 

7. If the suspension do not take place previous to the marriage, 
but is the result of the marriage itself, the right of dower is not im- 
paired. The following quotation from Perkins supports this prop- 
osition : " If there be lord, and a woman tenant of one acre of land 
by fealty, and twelve pence rent, and they intermarry, and the hus- 
band die, the wife shall be endowed of the third part of the rent by 
way of retainer ; and yet the husband was not seized thereof in deed 
during the marriage, for by the marriage the seigniory was in sus- 
pense, and so continued during the marriage. But notwithstanding, 
the husband was tenant of it during the marriage as to using an ac- 
tion, so that it was tantamount to a possession in law." 3 

So if the suspension be for years only, it does not prevent dower 
from attaching. 4 

The husband must be vested with the freehold and inheritance simul 

et semel. 

8. In order to render the wife dowable, the freehold and inherit- 
ance are required to be in the husband simul et semel — "at once and 
together." 8 They must also meet in him as one integral estate, and 
not as several or successive estates. But it is not necessary that 

i 1 Roper, H. and W. 373. 2 Co. Litt. 29, b. 

s Perk, by Greening, sec. 303 ; Park, Dow. 55. 
* Co. Litt. 29, b.; Park, Dow. 77. 

5 Perk. see. 333 ; Park, Dow. 56 ; 1 Roper, H. and W. by Jacob, 370, 371 ; 4 
Kent, 39. 



220 THE LAW OF DOWER. [CH. XI. 

they should result from one entire limitation, nor that there should 
be a unity of title as to the freehold and inheritance. By whatever 
means they meet so as to become absolutely consolidated, the crea- 
tion of a right of dower is the result. 1 If an estate, in terms, be 
limited to the husband for life, with remainder to his heirs Or to the 
heirs of his body, it is sufficient, if in point of construction, the re- 
mainder thus limited, will operate to vest the inheritance in posses- 
sion in the husband. 2 And if the husband be seized of a life estate 
in lands and acquire the immediate reversion or remainder in fee 
expectant upon its determination, the two estates, by force of the 
doctrine of merger, will become consolidated, and unite in him as 
one entire estate of inheritance. The same principle applies where 
the husband is seized of the remainder or reversion, subject to a free- 
hold estate, and that estate is surrendered to him during the cover- 
ture. In either case, the wife", if she be the survivor, is entitled to 
dower. 3 

9. In a case determined in Maine the consideration for a tract of 
land was paid by the husband, but the conveyance was made to a 
third person for the purpose of defrauding the creditors of the former. 
Subsequently the grantee executed to the husband a life lease of the 
premises, and the latter entered and continued in possession until 
his death. It was held that his widow was not entitled to dower. 
The decision, however, was placed more especially on the ground 
that the husband was not vested with a legal estate in the . inherit- 
ance, following, in this particular, the rule of the common law ex- 
cluding dower from the estate of a cestui que trust. And the court 
suggested that if dower be not allowed where the trust is lawful, a 
fortiori, the wife \jould not be dowable where the trust is fraudulent 
in its character, and therefore not enforceable in a court of equity so 
as to invest the husband with the necessary seizin. 4 

There must he no intervening vested freehold estate. 

10. The interposition of a vested freehold estate in a third person, 
between the freehold and inheritance of the husband, will, during the 
continuance of that estate, prevent dower from attaching. It is not 

1 Park, Dow. 56. a Ibid.; Perk. see. 335. 

a Post, \\ 13-15; Perk. see. 337; Tud. Cas. 43; 1 Washb. R. P. 154, 155; Beardslee 
■v. Beardslee, 5 Barb. 332. 

* Mann v. Edson, 39 Maine, 25. 



CH. XI.] THE ESTATE SUBJECT TO DOWER. 221 

enough that the husband is seized of an estate of freehold in posses- 
sion, and an estate of inheritance in remainder or reversion. The 
inheritance, as well as the freehold, must be in possession. In other 
words, it must be the immediate inheritance, and not an inheritance 
expectant upon an estate of freehold in any other person, interposed 
between the freehold and inheritance of the husband. Therefore, if 
lands be limited to A. for life, remainder to B. for life, remainder to 
A. in fee, the wife of A. will not be entitled to dower, unless, by the 
determination of the estate of B. during the coverture, A. becomes 
seized of the inheritance in possession. The intervening estate of B. 
prevents the operation of the law of merger, and keeps the freehold 
and inheritance of A. separate and distinct. As a consequence the 
right of dower does not attach. 1 

Intervening chattel interest no impediment to dower. 

11. An estate for years or other chattel interest intervening be- 
tween the freehold and inheritance of the husband will not prevent a 
title of dower from attaching. 2 This proposition is thus tersely stated 
by Perkins : "If a lease of land be made to the husband for life, the 
remainder to a stranger for years, the remainder to the husband in 
fee, and the husband die during the years, the wife may recover 
dower ; but execution shall stay until the term be determined, for 
this mesne remainder for years shall be no impediment, since the 
freehold and the fee were sufficiently joined in the husband simul et 
semel for the wife to have dower." 3 The rule is the same if the first 
estate be pur auter vie only, and limited to the husband and his 
assigns.* 

12. In all cases of the character above considered, dower attaches, 



i Finch's Law, b. 2, o. 3, p. 125 ; Bro. Dow. pi. 6 ; 1 Roll. Abr. Dow. pi. 9; Perk, 
see. 333, 335, 338 ; Park, Dow. 57 ; Bates' case, 1 Salk. 254 ; S. C. 1 Ld. Baym. 
326 ; 1 Boper, H. and W. by Jacob, 371 ; Eldredge v. Forrestal, 7 Mass. R. 253 ; 
Dunham v. Osborn, 1 Paige, 634; Fisk v. Eastman, 5 N. H. Bep. 240; Moore v. 
Esty, Ibid. 479 ; Green v. Putnam, 1 Barb. S. C. 500 ; Northcutt v. Whipp, 12 B. 
Mon. 65. 

2 Perk. sec. 336 ; Co. Litt. 32, a., 296, a.; Bates v. Bates, 1 Ld. Raym. 326 ; S. C. 

1 Salk. 254 ; 1 Lutw. 729 ; Weir v. Humphries, 4 Ired. Eq. R. 273 ; Park, Dow. 77 ; 

2 Crabb, Real Prop. 133, 158; 4 Kent, 39. 
8 Perk. sec. 336. 

4 Trevelyan v. Trevelyan, decided in the Eng. C. P. Trin. T. 1826. See note of 
the case in Addenda to Perkins, by Greening, p. 169 ; see, also, note to sec. 336. 



222 THE LAW OF DOWER. [CH. XI. 

subject only to the term, or other intervening chattel interest. The 
enjoyment of the estate by the dowress is postponed until such inter- 
vening interest is determined. If rent be reserved to the husband 
upon the intervening estate, the widow is entitled, upon endowment, 
to a proportionate part of such rent. 1 

Determination of the intermediate freehold during coverture subjects 
the estate to dower. 

13. In all cases in which dower is prevented from attaching by 
reason of the existence of an intermediate estate, the impediment 
will, of course, be removed by the determination of that estate. 2 A 
surrender of the intervening life estate by the tenant, or any grant 
thereof operating virtually as a surrender, although not so in form, 
will be attended with this result. Thus, a lease to the reversioner or 
remainder-man and his heirs for the life of the lessor therein, is in 
substance a surrender, for the reason that thereby the tenant for life 
parts with all his estate. 3 But a lease for the life of the remainder- 
man or reversioner will not operate as a surrender. In such case 
there is no merger of the particular estate. The reason assigned for 
this distinction is, that when a tenant for his own life makes a lease 
to another for the life of the lessee, the tenant for life retains a rever- 
sion, or what is sometimes denominated in the old books, a possi- 
bility, as possibly he may survive the lessee ; and upon the happening 
of that event he would be entitled to enjoy the premises for the unex- 
pired term of his own life. When such a lease is made to the owner 
of the inheritance, this reversionary interest of the tenant becomes 
an interposed estate of freehold between the lease for life and the 
inheritance. 4 

14. An instance is given in the books where a surrender will con- 
fer a title of dower although the surrender be defeasible upon the 
happening of a certain contingency. As where husband and wife 
are tenants for life and surrender to the reversioner, the wife of the 
latter is held dowable. And yet, if the wife of the tenant survive 
her husband, she may defeat the surrender. Here there is no inter- 

i Post, ch. 18. 2 Co. Litt. 29, a.; Park, Dow. 74; Bro. Dow. pi. 17. 

« 18 E. 3, 45 ; Park, Dow. 75. 

* Co. Litt. 42, a.; 2 Roll. Abr. 496, pi. 7 ; Bro. Dow. pi. 17 ; Bro. Estate, pi. 67 ; 
Park, Dow. 58, 75. The fact that the remainder-man is a party to the lease, pre- 
vents the forfeiture which might otherwise attach upon the aot of the tenant for life. 



CH. XI.] THE ESTATE SUBJECT TO DOWER. 223 

posed estate, but merely a right of defeating the surrender upon the 
happening of a certain event. 1 The exercise of this right would of 
course terminate the dower estate created by the surrender. 2 

So, also, if the tenant for life surrender to the reversioner upon con- 
dition the wife of the reversioner will be dowable so long as no entry 
is made for condition broken. 3 

15. It is to be noted in this connection that, in order to confer a 
right of dower in this class of cases, it is necessary that the inter- 
vening estate should terminate in the lifetime of the husband. If 
the wife survive the husband, and after his death the intermediate 
estate should determine by a surrender to his heirs, or otherwise, she 
would not thereby acquire a right to dower, for, as will be explained 
in the next chapter, 4 seizin during the coverture is indispensable to 
the inception of that estate. 5 

Effect of intervening contingent freehold remainder. 

16. Questions of the most abstruse and perplexing character have 
occasionally arisen with regard to the effect upon the right of dower, 
of the interposition of a contingent estate of freehold, between a limi- 
tation to the husband for life, and a subsequent remainder to his 
heirs. And to some extent, these questions have been rendered still 
more embarrassing, by the rule of the common law making contin- 
gent remainders liable to destruction by the determination of the 
particular estates upon which they depend before such contingent 
estates become vested, and the exceptions and qualifications engrafted 
upon this rule. 

17. The rule above referred to has long held a prominent place in 
the English Law of Real Property. The general doctrine is that the 
determination or extinguishment of the particular estate upon which 
the contingent remainder rests for its support, before the event has 
happened which is to enable it to vest, operates to its total annihila- 
tion. 6 This general doctrine is thus stated by Lord Hale : "If the 
contingent remainder can not take effect immediately on the first 
determination of the particular estate, whether it be determined by 

i Park, Dow. 75. 2 See ch. 14, g<5 3-5. 

» Bro. Dow. pi. 74 ; Park, Dow. 75. * Chap. 12. 

6 Perk. sec. 335 ; Park, Dow. 76. 

6 Fearne, Cont. Kern. 316; 2 Greenl. Cruise, 269; 4 Kent, 253; Archer's case, 1 
Co. 64. 



224 THE LAW OP DOWER. [CH. XI. 

merger or surrender, or in any other way whatsoever, it will never 
vest afterwards, though the particular estate should come in esse 
again." 1 But to the general rule thus laid down the same learned 
judge has annexed the following qualification : " Where an estate in 
esse and a contingent remainder over to him who had the first estate 
in esse are united together by one and the same conveyance, there 
the remainder in esse is vested until the contingent remainder come3 
in esse, and then the estates shall be opened and disjoined by the 
letting in of the contingent remainder, because they were all created 
together by the same conveyance, and therefore the estates shall be 
opened and closed as appointed by the original conveyance; but 
otherwise it is when the remainder in esse comes to the particular 
estate by any grant or conveyance made after the original convey- 
ance, for there the contingent remainder will be destroyed." 2 

18. It is another principle of the common law, having a direct 
and important connection with this subject, that whenever the pres- 
ent freehold and ultimate inheritance become united in the same 
person, and there is no intervening vested estate, the freehold be- 
comes instantaneously lost or merged in the inheritance; or, as 
Blackstone expresses it, "Whenever a greater estate and a less 
coincide and meet in the same person, without any intermediate 
estate, the less is immediately annihilated ; or, in the law phrase, is 
said to be merged; that is, sunk or drowned in the greater." 3 A 
contingent remainder, while contingent, is not recognized in law as 
an estate, in the proper sense of that term ; 4 and, therefore, in the 
case above supposed, an intervening remainder resting in contin- 
gency, will, by the application of the principle above stated, be 
absolutely defeated by such merger of the particular estate. This 
proposition, however, is subject to the qualification noticed in the 
preceding section relating to the creation of the several estates by 
the same instrument. 5 

19. The following examples are given by way of elucidation and 
illustration of these principles : Suppose that A., who has no son, 
has lands given him for his own life, remainder in fee to his eldest 
son, and the reversion to B. and his heirs. In this case A. would 
have a vested estate for his own life in possession. There would be 

i Purefoy v. Eogers, 2 Saund. .380, 387. 2 Ibid, 

s 2 Bl. Com. 177. 4 Wms. Real Prop. 235. 

6 See, also, infra, \ 22, for the rule -where the inheritance comes to the tenant for 
life by descent from the donor or testator. 



CH. XI.] THE ESTATE SUBJECT TO DOWER. 225 

a contingent remainder in fee to his eldest son, which would become 
a vesfed estate in such son the moment he was born. But suppose 
that A., before the birth of a son, purchase from B. his remainder 
in fee, and obtain a conveyance of it to himself. In such case A. 
would have an estate for his own life by the original grant or devise, 
and also, by his purchase, an immediate vested estate in fee simple 
in remainder, expectant on his own decease. And there being no 
intervening vested estate, the life estate would merge in the remain- 
der in fee, and thus destroy the contingent remainder. 1 The same 
result would follow a surrender by A. of his life estate to B. before 
the birth of a son, the effect of which would be to give to B. an un- 
interrupted estate in fee simple in possession, and the consequent 
destruction of the contingent remainder. 2 So if A. and B. should 
unite in a conveyance of their several estates to C, before the birth 
of a son to A., the consequence would be the same — C, by acquir- 
ing and uniting in himself the only existing vested estates, would 
have obtained an estate in fee simple in possession, on which no con- 
tingent remainder could depend. 3 

20. It will readily be seen that, in the cases above supposed, the 
intervening contingent interest interposes no obstacle to the attach- 
ment of dower. The merger, where it occurs, results in clothing 
the person in whom the two estates meet with the entire indefeasible 
estate. And it is immaterial in what manner the merger is produced. 
Whatever act is sufficient in law to determine the particular estate, 
will have the effect of destroying the contingent remainder. The 
instances in which this general rule is qualified will be more partic- 
ularly stated hereafter. 4 

21. It may be here observed, that in England the common law 
rule permitting contingent remainders to be defeated by the destruc- 
tion of the precedent particular estates, has been changed by stat- 
ute. 5 And, in this country, similar statutes are in force in several 
of the States. Thus, it is expressly enacted in Mississippi, that an 
alienation by the tenant of the particular estate, or its union by 
purchase or descent, shall not operate to defeat, impair, nor in any 

i Fearne, Cont. Rem. 317, 340 ; Wms. Real Prop. 235. 

2 Fearne, Cont. Rem. 317, 318 ; 2 Greenl. Cruise, 270, <S 6 ; Wms. Real Prop. 
235; and see Thompson v. Leach, 2 Vent. 198; S. C. 2 Salk. 427. 

s Fearne, Cont. Rem. 322, note ; Wms. Real Prop. 235, 236 ; 4 Kent, 254 ; Noel 
v. Bewley, 3 Sim. 103 ; 5 Cond. Eng. Ch. 33. 

* Post, I 22. s 8 & 9 Vict. ch. 106, g 8. 

VOL. I. 15 



226 THE LAW OF DOWER. [CH. XI. 

wise affect the remainder. 1 The Revised Statutes of Indiana of 
1843 contain an enactment which, in general terms, declares that 
no determination of the particular estate before the happening of the 
contingency shall defeat a remainder otherwise valid. 2 A like statute 
is in force in Michigan. 3 Except as to estates tail the law is the 
same in Maine. 4 So, also, in Massachusetts 5 and New York. 6 The 
effect of enactments of this character appears to be to place the cases 
to which they apply substantially upon the same ground occupied by 
those which we shall now proceed to consider. 

22. The principal difficulty with regard to the right of dower, in 
cases where contingent remainders intervene, occurs where the sev- 
eral estates are limited by the same instrument, or where the person 
having the particular estate by devise, is also heir at law to the tes- 
tator, and takes the fee by descent immediately from such testator. 7 
In either of these events, if there be an intervening contingent re- 
mainder, there will be no merger of the freehold and inheritance. 
The law will not permit the intention of the donor or testator to be 
defeated by the application of the technical doctrine of merger, where 
the person having the freehold and fee takes them by virtue of the 
same instrument which creates the contingent remainder, or where 
the fee descends to him directly from the testator by whose bounty 
he holds the freehold. In these cases, therefore, the contingent re- 
mainder is not defeated by reason of the particular estate and the 
fee becoming united in the same person. 8 

23. This being the rule, the question as to the right of dower in 
such cases is attended with peculiar difficulty. It is, as we have 
already seen, a fundamental principle in the law of dower, that the 



i Rev. Stat. 1840, How. & Hut. Dig. p. 348, g 25 ; Rev. Code Missis, p. 307, 
I 2, art. 7. 

' Page 425, ch. 28, |{j 63, 65. 

» Comp. Laws Mich. 1857, vol. ii. pp. 821, 822, \\ 32, 33, 34. 

* Rev. Stat. 1840, ch. 91, \\ 10, 11 ; Rev. Stat. 1857, ch. 73, \ 5. 

« Rev. Stat. ch. 59, \\ 7, 8 ; Gen. Stat. Mass. ch. 89, \\ 10, 11. 

« 2 Rev. Stat. p. 11, \\ 32, 33; 2 Greenl. Cruise, 270, note; and see 4 Kent, 252; 

1 Washb. Real Prop. 156, note. 

' For the rule where the descent is mediate, and not immediate, see post, \ 25. 

8 Wiscot's case, 2 Co. 60, b.; Purefoy v. Rogers, 2 Saund. 380, 387; Plunkett v. 
Holmes, 1 Lev. 11 ; Raym. 28 ; Archer's case, 1 Rep. 64 ; Boothby v. Vernon, 9 
Mod. 147; Crump v. Norwood, 7 Taunt. 362; Fearne, Cont. Rem. 341, 503; Gilb. 
Uses, by Sugden, 303, note (2) ; 1 Roper, Husb. and Wife, by Jacob, 9, 363, 364 ; 

2 Greenl. Cruise, 273, 274 ; 4 Kent, 254 ; see Doe v. Scudamore, 2 Bos. & Pul. 297. 



CH. XI.] THE ESTATE SUBJECT TO DOWER. 227 

husband must have the immediate freehold and inheritance, simul et 
semel. If, therefore, the intermediate contingent, interest operate 
to prevent the life estate of the husband from merging in the inher- 
itance, and thus keeps the two estates disjoined, it is difficult to under- 
stand how, upon principle, the right of dower can attach so long as 
there is a continuing possibility that the contingent estate may vest. 1 
It would seem, however, to be the result of the adjudged cases, and 
the concurring opinion of many of the writers on the law of real prop? 
erty, that where a contingent estate of freehold is interposed between 
a limitation to the husband for life and a subsequent remainder to 
his heirs, the remainder is executed in possession in the tenant for 
life sub modo; or, in other words, that the estates are consolidated 
or united until the happening of the contingency; but with the 
qualification annexed to such consolidation, that if the contingency 
happen, they shall again divide, and resume the character of sev- 
eral or distinct estates, so as to let in the estate limited upon that 
contingency. 2 And it appears to be the prevailing opinion that 
upon this union of the freehold and inheritance sub modo, a right of 
dower attaches, subject to a liability to be divested upon the hap- 



i Park, Dow. 63, 64 ; Ibid. 71-73 ; 4 Kent, 40, note. 

a Purefoy v. Rogers, 2 Saund. 380, 387 ; Lewis Bowles' case, 11 Co. 79, a., 80, a.; 
Co. Litt. 28, a.; Fearne, Con. Rem. 36 ; Preston, Rule in Shelley's case, 80; 3 Prest. 
Conv. 113, 489 ; 1 Roper, H. and W. 9, 362-365; 2 Greenl. Cruise, 272, 273, \\ 19, 
20 ; and see Park, Dow. 61, 62. Mr. Park considers it an open question whether 
dower attaches in such cases, and appears to incline strongly to the opinion that it 
does not. Park, Dow. 70-73. Mr. Washburn holds explicitly that there is no dower. 
1 Washb. Real Prop. pp. 155, 156, \ 7. In this he is supported by the views of Mr. 
Hilliard. 1 Hilliard's R. P. 2d ed. p. 134, <S 49. In the latter work, but two re- 
ported cases are cited to this point — Moore v. Esty, 5 N. H. 492, and Duncomb v. 
Duncomb, 3 Levinz, 437. In the first of these the intervening estate was held a 
vested one : and the decision in the second case is supposed to have been placed on 
the same ground. Post, \ 37. It may be remarked, further, that the case which 
Mr. Hilliard puts, by way of illustration, of an estate limited to A. and B. for their 
lives, and after their deaths to the heirs of B., is hardly in point. The wife of B. is 
held not do wable in Buch case on account of the joint nature of the life estate in A. 
and B., rather than by reason of the contingency as to the survivorship. See post, 
\ 32 ; also, eh. 12, \ 33 ; and ch. 16, \ 4. And if the two estates (i.e. the life estate 
and the inheritance) be derived from different sources or titles, so as to enable the 
doctrine of merger to apply, the life estate of B. would become merged, as to a 
moiety, in the inheritance, and the joint tenancy severed. The effect of this would 
be to give dower to his wife, in a moiety, at least, of the lands. See post, g 32, and 
the authorities there cited. 



228 THE LAW OF DOWBR. [CH. XI. 

pening of the contingency and the consequent vesting of the contin- 
gent estate. 1 

24. In one portion of his treatise on the Law of Merger, Mr. 
Preston speaks of this consolidation as a "temporary merger." 2 In 
another passage it is referred to by him as a protection from merger. 3 
Mr. Park is of opinion that it is unaccompanied by merger. " The 
effect of a merger," he observes, "would be to accelerate the re- 
mainder limited to the heirs of the body, and by annihilating the 
particular estate of freehold by -which the contingent remainder is 
supported, it would, ipso facto, destroy that contingent remainder. 
The consolidation which the books suppose, would, therefore, appear 
to be an exception to the law of merger ; an union of the time of 
two estates, without an involving of the ownership of the prior estate 
in that of the subsequent one."* 

25. Where the several estates are not created by the same instru- 
ment, or where the descent of the fee upon the tenant for life is not 
immediate, but mediate, from the testator ; as where it first descends 
to another person as heir, and from him to the tenant for life; or 
where it devolves from a devisee in remainder under the will, the 
doctrine of merger applies, and the contingent remainder will be 
destroyed. 6 This proposition is here stated as the rule of the com- 
mon law, without reference to the modifications effected by the sev- 
eral statutory provisions before referred to. 6 Where a merger occurs 
jn the manner above stated, the right of dower will unquestionably 
attach. 

26. The old reports contain several decisions bearing upon the 
questions discussed in the foregoing pages. Cordal's case is one of 
these. 7 In that case lands were devised " to Ed. Cordal, (brother of 
the testator,) for life ; remainder to his first son in tail, and so to the 



iWatk. Conv. by Preston, 45; Prest. Est. 535, (42 Law Lib.); Com. Dig. Est. 
(B. 18) ; 1 Roper, H. and W. 9, 363 ; 2 Crabb, Real. Prop. 160 ; Tud. Cas. 43 ; and 
see 3 Prest. Conv. 113. 

2 3 Prest. Conv. 113. Chancellor Kent terms it " a kind of temporary merger ;" 
4 Kent, 40, note. 

s 3 Prest. Conv. 489. i Park, Dow. 62, 63. 

6 Fearne, Cont. Rem. 343, 344, 4 Am. ed.; 1 Roper, Husb. and Wife, 363-365 ; 
2 Greenl. Cruise, 274, \\ 26, 27; 4 Kent, 254; Kent v. Harpool, 1 Vent. 306; T. 
Jones, 76 ; Purefoy v. Rogers, 2 Saund. 386, 387 ; Hooker v. Hooker, Rep. temp. 
Hardwicke, 13 ; Crump v. Norwood, 7 Taunt. R. 362. 

« Supra, \ 21. 

' Cordal's ease, Cro. Eliz. 316 ; S. C. stated 8 Co. 96. 



CH. XI.] THE ESTATE SUBJECT TO DOWER. 229 

second ; the remainder to the heirs of the body of Ed. Cordal." 
According to the report of the case, "it was resolved, that the estate 
tail was not executed (in possession) for the possibility of the mean 
estate that might interpose, and therefore it was always disjoined 
during the life of Ed. Cordal ; so that of that estate his- wife could 
not be endowed. And this was resolved upon conference." It has 
been remarked,, that it is difficult to understand with precision what 
the judges intended to express by the foregoing resolution. Taken in 
its literal extent, it can not be sustained at this day, for it is now 
generally conceded that under such a limitation, for some purposes 
the estate tail is executed, and there is a union of the freehold and 
the inheritance. In accordance with this view, Cordal's case has, 
on several occasions, been denied to be law. 1 

27. Another early case involving this question, is Boothby v. Ver- 
non, which was a proceeding for curtesy. 2 Anne Boothby was tenant 
for her life, with contingent remainder to the issue male of her body 
living at her death, in tail male, and she had the reversion in fee by 
descent. The Court of Common Pleas, on a case sent there by the 
Court of Chancery, certified that the husband of Anne Boothby was 
not tenant by the curtesy. Upon a rehearing before Lords Com- 
missioners Raymond and Gilbert, it was argued that the husband 
had a right to be tenant by the curtesy, because his wife was seized 
of the inheritance; for, though she had an express estate for life 
given her by the will, yet there was no immediate remainder which 
could possibly vest during her life ; but the inheritance was limited 
upon a contingency at her death, and, therefore, she being heir at 
law to the testator, it must descend to her till the contingency hap- 
pen, so that she was seized of the inheritance subject to the contin- 
gency. The case was also argued upon another ground, but the 
court appear to have decided it without reference to the circum- 
stance that the wife had the reversion by descent, arguing only upon 
the intention of the testator, that she took no estate of inheritance 
under the will ; a point which was not made at the bar. Towards 
the conclusion of the judgment, however, the court is reported to 
have put the case, that "where an estate for life is limited to a 
woman, remainder to her first, and every other son in tail male, 



1 Park, Dow. 64 ; see 2 Saund. 386 ; Cas. temp. Hardw. 13 ; 2 Barnard. K. B- 
379; Co. Litt. 239, b. note 3; Fearne, Cont. Rem. 346, 4 Amer. ed.; Gilb. Dev. 71. 
' Boothby v. Vernon, 9 Mod. 147 ; S. C. 2 Eq. Ab. 727. 



230 THE LAW OF DOWER. [CH. XI. 

remainder to the heirs of her body, remainder to her right heirs, 
here it is plain that she is seized of the inheritance; yet if she hath 
a son, her husband shall not be tenant by the curtesy, because the 
contingent estate which is to arise upon her death, intervenes between 
her estate for life, and the inheritance." 1 

28. This case is sharply criticised by Mr. Park. " The decision 
of Boothby v. Vernon," he observes, "is peculiarly unsatisfactory. 
The reasoning of the judges as to the intention of the testator, quite 
overlooks the question ; such intention having nothing to do with the 
positive rule of law which cast the reversion upon Anne Boothby as 
the heir at law of the testator, and the reference made to the case of 
a limitation similar in terms to that in Cordal's case, is expressly 
qualified by saying, 'if she had a son;' in which event, no doubt could 
be entertained that the title of the husband to be tenant by the cur- 
tesy would be avoided. Indeed, this case of Boothby v. Vernon can 
not be admitted as a direct authority either way, the judges having 
evidently treated the wife as being a bare tenant for life, with a pos- 
sibility to her issue, as was observed by Lord Hardwicke in Hooker 
v. Hooker." 2 

29. In the case of Hooker v. Hooker, 3 above referred to, lands 
were settled to the use of William Hooker, the elder, for his life, 
remainder to hi3 wife for life, remainder to William Hooker (his son 
and heir apparent) for life, remainder to his first and other sons in 
tail, remainder to his daughters in tail, remainder to William Hooker, 
the elder, in fee. William Hooker, the father, and his wife died in 
the lifetime of the son, who also died without issue, and the question 
was whether his widow was entitled to dower. The case was twice 
argued during the time of Lord Chief Justice Raymond, and on each 
of these arguments the court were strongly of opinion that the widow 
had a title of dower. 4 They agreed, that " where the estate for life, 
and the remainder in fee, are in one and the same person by the 
same conveyance, there shall be an opening of those estates, in order 
that the contingent remainder may vest. But wherever the remain- 
der in fee comes to the person who has the estate for life, and there 
is no vested remainder between, in such case the contingent remain- 

1 Park, Dow. 64, 65. The words "which is to arise upon her death," appear to 
have crept in by mistake. Ibid. note. 
' Park, Dow. 65, 66. 

s Hooker v. Hooker, Cas. temp. Hardw. 13 ; 2 Barnardiston, K. B. 200, 232, 379. 
* 2 Barnard. K. B. 200, 232. 



CH. XI.] THE ESTATE SUBJECT TO DOWER. 231 

der is always destroyed, whether such coming of the remainder in 
fee is by the act of God, or by the act of the party. 1 For this pur- 
pose the Chief Justice mentioned the case of Harpool v. Kent, Sir 
T. Jones, 76, where there were grandfather, father, and son; the 
grandfather settled his estate to the use of himself for life, the re- 
mainder to the use of the father for life, the remainder to the use of 
his first and every other son in tail male, the remainder to his own 
right heirs. The grandfather died before the birth of the grandson, 
whereby the remainder in fee came to the father. The court was of 
opinion in that case that the contingent remainder was destroyed." 

30. After the appointment of Lord Hardwicke as Chief Justice, 
the case was again argued. His lordship observed that the general 
questions in the case were: "1st, whether the contingent remainder 
was destroyed by the reversion in fee falling on the estate for life; 
and, 2dly, admitting that it was not, and that there might be an 
opening, whether this possibility would destroy the dower." He was 
inclined to think the remainder was destroyed. He agreed to the 
distinction between the several estates coming to one person by the 
same deed, and by distinct acts. "Kent and Harpool," he remarked, 
"was a very strong case, and in Purefoy and Rogers, 2 Saund. 380, 
the express opinion of Hale and the judges was, that the purchasing 
the remainder in fee by the tenant for life, totally destroyed the con- 
tingent remainder, and that it could never be let in again, though the 
particular estate were revived. 2 In the present case, indeed, there 
was no descent of the fee, because it was in abeyance during the life 
of William Hooker, the elder, [but] then the estates came to be con- 
solidated, and therefore he thought the contingent interest was de- 
stroyed in this case, likewise. But supposing it were not so, and 
that there was a possibility of the estates opening in this case to let 
in the contingent remainder, yet he thought the plaintiff had a good 
title to dower, inasmuch as it was stated that William Hooker, the 
younger, never had any issue. The single case inthe books that he 
found against this, was that in Croke, 3 but in Purefoy v. Rogers, 2 
Saund. 386, Lord Chief Justice Holt, who was then counsel, said 

1 This appears to be too broadly stated. Vide Park, Dow. 67, n. And this rule of 
the common law has been modified in England and some of the States by recent 
statutes. Supra, \ 21. 

2 This seems to be too general. Park, Dow. 67, n.; Bee Fearne, Cont. Eem. 5th ed. 
p. 349. 

8 Cordal's case, Cro. Eliz. 315 ; ante, \ 26. 



232 THE LAW OP DOWER. [CH. XI. 

Lewis Bowles' case and others were against it, and that it was not 
law; and in ejectment brought in Lord Bridgman's time, that case 
in Croke was denied by him likewise to be law, and accordingly he 
(Lord Hardwicke) did not take it to be so. Page, J. Here is nothing 
but a possibility which has never happened, nor can now happen, to 
distinguish this case from an estate in fee ; therefore he thought the 
wife plainly entitled to dower. Probyn, J. The distinctions taken 
in this case may be allowed, and yet the widow be entitled to her 
dower ; besides, it is impossible now the contingencies ever should 
happen." * 

31. Mr. Park has the following observations on the foregoing 
case : "This case certainly did not require that Cordal's case should 
be overruled upon the point of dower, and it is observable that both 
Lord Hardwicke and the other justices are reported to have laid 
stress upon the circumstance that the contingency was become im- 
possible, which seems alone to distinguish it from Cordal's case. The 
cases in which Cordal's case is mentioned to have been denied, were 
loth, no doubt, (as in Purefoy v. Rogers,) solely upon the point of 
consolidation, as to which, Cordal's case certainly can not be now 
supported. The judgment of Lord Hardwicke, as given above, 1 
(being what appears the preferable result of the several reports,) sets 
the case in a somewhat different view from that in which it has hith- 
erto appeared in the treatises. Lord Hardwicke, it seems, doubted 
no more "than his predecessor, Sir Robert Raymond, that the subse- 
quent descent of the reversion upon a tenant for life would destroy a 
contingent remainder ; but his doubt upon this case arose from an 
idea that the reversion did not come to the son by descent, inasmuch 
as it was in abeyance during the life of the father. 2 This notion 
being now universally exploded as to conveyances to uses, a case 
circumstanced like Hooker v. Hooker, might, at this day, be de- 
termined on the point of the destruction of contingent remainders 
alone." 3 

32. Several cases are stated in the early text-books and digests, 
in which a union of the freehold and inheritance is prevented, and 
dower consequently excluded. Thus, according to Perkins : " If lands 
be given to two men, and to the heirs of the body of one of them 

1 In the report of this case, contained in Annesley, the judgment of Lord Hard- 
wicke is supposed to be incorrectly given. Park, Dow. 68, n. (x.) 
3 Upon this point, consult Fearne on Cont. Kem. 352, 5th ed. 
» Park, Dow. 64-71. 



CH. XI.J THE ESTATE SUBJECT TO DOWER. 233 

begotten, and he who hath the fee tail takes a wife, and dies in the 
lifetime of him that hath the freehold, although he that hath the 
freehold dies, the wife shall not have any dower, because the estate 
tail was not executed to all purposes in her husband ; and yet if a 
stranger had entered after the death of him who had the freehold, 
the issue of the donee should have had a formedon en le descend. 
against him, and should have alleged the esplees in his father ; and 
so to such intent the estate was executed in the donee." 1 In this 
case, were the estate tail to execute absolutely in the person to whom 
the inheritance is limited, the merger of the freehold for one moiety 
would sever the joint tenancy and thus defeat the intention of the 
donor. This the law does not permit. 2 

But the same distinction, before adverted to, is taken between the 
case above given and one where the inheritance comes to the hus- 
band by a separate conveyance or subsequent descent. In the latter 
case the freehold would be immediately merged for a -moiety, and the 
joint tenancy consequently severed. As a result of this, the wife 
would be entitled to dower. 3 

33. In the following case, stated by Perkins, it is held that dower 
attaches : " If land be leased to A. and B. for the life of C, the 
remainder to the right heirs of A., and A. takes a wife, and C. dies, 
living A. and B., and A. dies, living B., his {i.e. A.'s) wife shall be 
endowed; because cestuy que vie died living A. the husband, so 
that the freehold and inheritance were joined in the husband simul 
et semel during the coverture." 4 In this case the joint seizin of the 
freehold for the life of C. prevented the remainder limited to the 
heirs of A. from uniting with his estate of freehold, and consequently 
during the continuance of that joint seizin the right of dower could 
not attach. But the joint seizin of the freehold being determined 
by the death of C, the remainder to the heirs of A. thereupon became 
merged and consolidated with the freehold of A., under the rule in 
Shelley's case, and thereby, as Perkins expresses it, " the freehold 
and inheritance were joined in the husband, simul et semel." 5 



i Perk. sec. 334 ; Co. Litt. 182, a. 

2 See Dyer, 9, a, pi. 22 ; ante, \ 22. 

3 Co. Litt. 182, b., 183, a.; Wiscot's case, 2 Co. 60, b.; Merrill v. Rumsey, 1 Keb. 
888; Park, Dow. 59, 60; see, also, Fearne, Cont. Rem. 30-36, 5th ed.; 3 Prest. 
Conv. 59-69 ; ante, \ 25. 

4 Perk, by Greening, sec. 337. 

» Ibid. Greening's note (i.) ; 1 Prest. on Est. 336 ; Park, Dow. 76. 



234 THE LAW OF DOWER. [CH. XI. 

34. So if husband and wife are tenants in special tail, with re- 
mainder to the right heirs of the husband, and the wife die without 
issue, the husband will become tenant in tail after possibility of issue 
extinct, or, in other words, tenant for life only. The estate for his 
own life thus conferred upon him, by meeting with the remainder in 
fee, becomes merged therein, and he is consequently seized of the 
freehold and inheritance in possession. The wife of a second mar- 
riage, contracted while such seizin existed, would be entitled to dower 
in the estate. 1 

Vesting of the contingent remainder defeats dower. 

35. Upon the assumption that a right of dower attaches upon an 
estate executed in the husband sub modo, it may become a question 
whether, if the intervening contingent remainder come in esse after 
the title of the widow is consummated by the death of the husband, 
the estate arising under that remainder shall take effect subject to 
dower, or shall overreach and defeat that estate. The better opinion 
appears to be that upon the happening of the contingency and vest- 
ing of the remainder, the husband is to be regarded as having been 
seized of several estates ab initio, and consequently that the dower 
estate is defeated. 2 



Intervening possibility excludes dower. 

36. The interposition of a mere possibility, so that it be of a free- 
hold nature, between the life estate and inheritance of the husband, 
will, so long as the possibility exists, prevent a title of dower from 
attaching. Its effect is not merely to defeat the right of dower upon 
the happening of the possibility, but to absolutely prevent it from 
coming into existence, unless the possibility be determined during 
the coverture. 3 It is upon this principle that dower is denied to es- 
tates held in joint tenancy. 4 The possibility of survivorship, neces- 
sarily incident to the joint estate, operates to prevent dower from 



iPerk. sec. 338, and Greening's note (£.); 1 Roll. Abr. 677, pi. 10; Bro. Dow. 
pi. 25 ; 1 Roper, Husb. and Wife, 366 ; Park, Dow. 56, 57. 

* Park, Dow. 73. 

8 Park, Dow. 72 ; 1 Washb. Real Prop. 156, \ 8. This doctrine has no applica- 
tion to estates held upon condition. See po3t, ch. 14, \\ 3-5. 

* Post, ch. 12, \ 33, and ch. 16, \\ 1-5. 



CH. XI.] THE ESTATE SUBJECT TO DOWER. 235 

attaching. The case considered on a previous page, of a lease by 
tenant for life to the reversioner, for Ms (i.e. the reversioner's) 
life, is governed by the same principle. 1 In the old books the 
mesne reversion of the tenant for life is treated as a mere possi- 
bility. 

37. It was at one time a question whether, if an estate were lim- 
ited to A. for life, remainder to B. for the life of A., remainder to 
A. in fee or in tail, this intermediate limitation to B. conferred such 
an interest as would prevent the consolidation of the estate for life 
and remainder in fee, and exclude dower. Tbis point was determined 
in Duncomb v. Duncomb, 2 where, upon a writ of dower it appeared 
by special verdict, that William Duncomb, the husband of the de- 
mandant, was tenant for life, remainder to J. S. and his heirs for 
the life of William, remainder to the heirs male of the body of Wil- 
liam, with the ultimate remainder in fee to George Duncomb, the 
tenant to the writ. William Duncomb died without issue. The 
question was "whether the remainder to J. S. and his heirs for the 
life of William Duncomb be such an interposing estate between the 
estate for the life of William and the remainder to the heirs of his 
body, that the wife should not be endowed ?" On behalf of the de- 
mandant it was urged, " that the whole estate was really in William, 
and the remainder to J. S. for the life of William was no more than 
a possibility ; so that if William had committed a forfeiture, J. S. 
might take advantage thereof for preservation of remainders. But 
in the mean time the whole estate is executed in W. D., as in Lewis 
Bowles' case 3 the whole estate tail was executed in the father till 
the birth of the first son; and though by this possibility the estate 
for the life of William is not merged, yet the estate tail is executed 
to such a purpose that the wife shall be endowed." But, according 
to the report, " the court, upon the first argument, hastily gave judg- 
ment for the tenant."* The ground of the decision is not stated. 
Mr. Fearne, however, regards the interest of J. S. as an inter- 
vening vested estate, and not a mere possibility, as claimed in the 
argument. 5 Mr. Park is of the same opinion, and places the de- 
cision upon that ground. 6 He adds, that this decision has ever 
since been considered good law, and is sanctioned by the decisions 



1 Ante, I 13. 2 Duncomb v. Duncomb, 3 Lev. 437. 

3 Lewis Bowles' case, 11 Co. 83. 4 Duncomb v, Duncomb, 3 Lev. 437. 

5 Fearne, Con. Rem. 349. 6 Park, Dow. 74. 



236 THE LAW OF DOWER. [CH. XI. 

on the common limitations to trustees to preserve contingent re- 
mainders. 1 

The rule excluding dower where a mere possibility is interposed 
between the freehold and the inheritance, is very difficult to reconcile 
with the idea that dower may attach where there is an intermediate 
contingent estate which may possibly vest. Perhaps, however, in 
view of the favor with which the estate of dower is usually regarded 
by the law, the inconsistency may be said to consist in the denial of 
it in the one case, rather than in the recognition of it in the other. 

1 Park, Dow. 74. And see Dormer v. Parkhurst, 18 Vin. At>r. 413 ; 3 Bro. Pari. 
Cas. 453 ; 13 East, 489, and the certificate in Colson v. Colson, 2 Atk. 250. 



CHAPTER XII. 



OF SEIZIN AS A REQUISITE OF DOWER. 



8 1. The general doctrine. 
2-5. Nature and incidents of seizin. 
6-11. Seizin in the United States. 
12-15. Mere right of entry insufficient 
to give dower at common law. 

16. Judgment alone against disseizor 
inoperative to confer seizin. 

17. Execution served by the heir in- 
sufficient to give dower. 

18. Necessity of actual entry abro- 
gated by statute in England. 

19-21. The doctrine in the United 
States. 

22, 23. Effect of death of bargainee 
before enrollment. 

24-26. Seizin in law sufficient to give 
dower. 



\ 27. Conveyances under the statute 
of uses. 

28. Shifting uses. 

29. Doctrine of uses in the United 
States. 

30. Seizin of incorporeal heredita- 
ments. 

31. 32. Tortious seizin. 

33. Joint seizin. 

34, 35. When rendered sole by relar 
tion. 

36-38. Transitory seizin. 

39-46. Conveyance, and simultaneous 
reconveyance by mortgage. 

47, 48. Requisites of the rule making 
such seizin transitory. 

49. Instantaneous seizin. 



The general doctrine. 

1. It was an inflexible rule of the common law that the right of 
dower could not attach upon any estate of which the husband had 
not been seized, either in deed or in law, at some period during the 
coverture ; and the courts, both of law and equity, were accustomed 
to enforce this rule with great rigor and severity. A mere right 
to, or interest in land, unless accompanied by technical seizin, was 
deemed insuflicient to confer a title of dower. 1 Some degree of 
familiarity with the general principles which fix and determine the 
legal requisites of seizin, is necessary, it will be perceived, to a proper 
understanding of the full force and effect of this rule. To this sub- 
ject, therefore, we will now briefly give our attention. 



i Litt. sec. 36; Perk. sec. 301 ; Fitzh. N. B. 147, (E.); Co. Litt. 81, a.; Park, Dow. 
24; Tud. Cas. 45. 

(23T) 



238 THE LAW OF DOWER. [CH. XII. 

Nature and incidents of seizin. 

2. Under the old feudal system the mode of transferring a free- 
hold was by corporeal investiture, or livery of seizin, and this cere- 
mony was absolutely necessary to a perfect and complete transfer of 
the estate. It consisted, simply, in an open and notorious delivery 
of the possession to the proposed tenant of the freehold, in the pres- 
ence of the pares curiae, or peers of the lords' court; and this was 
usually effected by the lord of the manor, or some one authorized to 
act in his name, going upon the land with the tenant, and making a 
symbolic delivery of the possession to him by placing in his hand 
some portion of the premises, such as a turf or a twig severed there- 
from, the pares curiae acting as -witnesses of the transaction. This 
act of investiture was denominated livery of seizin. No deed or 
other writing was necessary to perfect the title of the tenant, though 
it was not an uncommon practice, as a means of preserving some evi- 
dence of the transfer, to record, in what were termed Irevia testata — 
corresponding to some extent with deeds of modern date — the nature 
of the services which the tenant was to render, and the terms and 
conditions upon which he was to hold the land. This record was 
authenticated by the seal and name or mark of the lord, attested by 
some of the pares. The formality of livery of seizin being completed, 
the party thus placed in possession became, to all intents and pur- 
poses, seized in deed, as tenant of the freehold. 1 

3. Although the system of military tenures was abolished at a 
comparatively early period, yet many of its peculiar features had 
become so interwoven with the law of real property, that it became 
a matter of great difficulty, if not indeed almost an impossibility, to 
make a thorough and entire abolition of all the incidents of the sys- 
tem. The rule requiring livery of seizin became engrafted upon the 
common law, and was preserved in England until the 8th and 9th of 
Victoria, (1845,) at which time it was finally abolished. In modern 
English practice livery of seizin was exactly similar to the investi- 
ture of the feudal law, and in common law conveyances was in- 
dispensable to a complete transfer of title to the purchaser. The 
mere signing and sealing of a deed of feoffment of lands, unless pos- 
session were formally delivered by the feoffor to the feoffee, was in no 

!1 Sulliv. Lect. 142, 145; Co. Litt. 26^, b. n. 217; Stearns' Eeal Act. 2, 3; 1 
Spence's Eq. Juris. 139, 160 ; 1 Washb. Real Prop. 32, 33 ; Green v. Liter, 8 Cranch, 
229. 



CH. XII.] SEIZIN AS A REQUISITE OF DOWER. 239 

instance sufficient to transfer an estate of freehold. It did not con- 
vey the estate itself, but was regarded merely as evidence of the 
nature of the conveyance. Without the formality of livery of seizin, 
the deed passed only an estate at will. 1 

4. Livery of seizin at common law consisted of two kinds : livery 
in deed, and livery in law. The feoffor might go upon the premises 
with the feoffee, and there, taking the ring of the door of the prin- 
cipal mansion, or a turf or a twig, deliver the same to the feoffee in 
the name of seizin ; or he might say to the feoffee, " I am content 
that you should enjoy this land according to the deed," or words of 
similar import. Either of these modes constituted livery of seizin 
in deed; but so strict was the law that a mere delivery of the deed 
on the premises was not sufficient. It was necessary that it should 
be delivered in the name of seizin. Livery in law, was where the 
feoffor and feoffee went within sight of the premises, and the former 
said to the latter, " I give you yonder house, or land ; go and enter 
into the same, and take possession of it accordingly." If the feoffee 
entered in pursuance of this authority during the lifetime of the 
feoffor, the seizin was complete. Or if he could not enter without 
endangering his life, it was sufficient for him to venture as near as 
might be consistent with his safety, and there make claim to the 
land. This was also sometimes called a constructive seizin ; and the 
same term has been applied to cases where a grantee, or the heir, of 
several parcels of land in the same county, enters into one parcel in 
the name of the whole, which he may do where there is no conflicting 
possession of the parcels not actually entered upon. Livery of seizin 
being thus made, the feoffee became invested with the legal title of 
the freehold, and was said to be seized thereof in deed. 2 

5. Seizin in law, is where title is cast upon a person by operation 
of law. Title to lands acquired by descent is an instance of this. 
Before entry the heir is said to be seized in law. But an actual 
entry upon the lands, either in person, or by some properly author- 
ized agent, is necessary at common law, to invest him with seizin in 
deed. 3 

1 1 Inst. 48, a.; 4 Greenl. Cruise, 67, \ 5. 

2 4 Greenl. Cruise, p. 67, \\ 8, 9, and p. 70, \\ 11, 12, 13 j Litt. sec. 417, 418, 419 ; 
Co. Litt. 48, ». b.; Thoroughgood's case, 9 Co. 136, a.; Vaughan v. Holdes, Cro. Jac. 
80 ; Parsons v. Perns, 1 Mod. 91 ; Dow v. Stock, Gow R. 178 ; McLardy v. Flaherty, 
3 Kerr, N. B. Rep. 455. 
' s Litt. sec. 448 ; 1 Roper, H. and W. by Jacob, 352, 353. As to the effect of con- 
veyances under the statute of uses, see infra, \ 27. 



240 THE LAW OF DOWER. [CH. XII. 

Seizin in the United States. 

6. It may be stated as a general proposition that the common law 
mode of conveyance by feoffment and livery of seizin, was never 
adopted in the United States. 1 There are, however, some faint 
traces of the use of livery of seizin to be discovered in the early 
history of New England, and perhaps in some other portions of the 
country. Mr. Sullivan, in his treatise on Land Titles, says the cere- 
mony was practiced in the early settlement of the country, and refers 
to an instance where the colony of Plymouth made livery to Vines 
and Oldham of their patent on Saco River, in 1642. And he adds 
that it was observed in York, Maine, until 1692. 2 Judge Sharswood 
expresses the opinion that prior to the statute of Frauds and Perju- 
ries of 21st March, 1772, a parol feoffment, with livery, was a valid 
conveyance of lands in Pennsylvania. 3 Massachusetts dispensed 
with livery of seizin by statute in 1642. In Plymouth it was super- 
seded at an early date, by deed acknowledged and recorded. 4 And 
the mode of conveying lands by feoffment with livery of seizin was 
also long since abolished in New York by statute. 5 In many of the 
States it was never heard of in actual practice. 6 

7. In this country the conveyance of lands is generally, if not 
universally, regulated by statute in the several States; each State 
for itself prescribing what acts or formalities shall be necessary to 
pass title to, or an interest in, lands within its own particular juris- 
diction. Generally, also, a deed made, acknowledged, delivered, and 
recorded in the manner prescribed by statute, is all that is required 
to render a transfer of the title complete, and to invest the purchaser 
with seizin in deed of the lands conveyed. The recording of the con- 
veyance is regarded, in many of the States, as the legal equivalent 
for livery of seizin. In other States, the mere delivery of the deed, 
without registration, operates to pass a perfect title, as against the 
grantor and his representatives, and all other persons having notice 
of the rights of the grantee. In some instances, also, the enactments 
go so far as to make an unrecorded deed good as against judgment 

1 4 Kent, 84 ; 1 Spence, Eq. Juris. 156. 

2 1 Washb. Real Prop. 34, note 1. 

3 Ibid.; Smith, Land, and Ten. Morris' ed. 6, note. 

* Colony Laws, 85, 86 ; 1 Washb. Real Prop. 34, note 1. 

5 1 Rev. Stat. p. 738, <S 136 ; ed. 1829. 

6 Davis v. Mason, 1 Pet. 503, 508. 



CH. XII.] SEIZIN AS A REQUISITE OP DOWER. 241 

creditors, whether with or without notice. 1 In several of the States, 
however, the registry of the deed is made an essential prerequisite to 
its validity, and a failure to comply with this statutory requirement 
is as fatal to a claim of seizin under such deed, as was the omission 
of livery of seizin to a feoffment at common law. An old statute of 
Massachusetts, passed in 1652, declared that a sale of lands should 
not be good unless made by deed acknowledged and recorded accord- 
nig to law. 2 But this enactment has long since been repealed. 3 In 
North Carolina, however, in the case of Thomas v. Thomas, 4 it was 
held, under a statute of that State, that registration of a deed for 
lands is necessary to make the seizin complete. And the Tennessee 
act of 1831 is substantially to the same effect. 6 But this is the 
utmost limit to which any of the statutes or reported cases go. It 
is believed that in no State is an actual entry necessary, where there 
is no adverse possession at the time of the conveyance, to give such 
conveyance validity, or to confer upon the grantee seizin in deed of 
the premises conveyed. The exception introduced in cases of adverse 
possession will be noticed on a subsequent page. 6 

8. A case showing the necessity of registration as against a sub- 
sequent purchaser without notice, even where possession has been 
taken, is reported in Massachusetts. A grantee of lands entered 
and enjoyed them for a time, and afterwards reconveyed to the 
grantor. Neither of the deeds was recorded. Subsequently the 
original grantor conveyed the same lands to a third person, who was 
entirely ignorant of the prior conveyances, and it was held that as 
against such purchaser, the first grantee had no seizin upon which 

1 4 Greenl. Cruise, *45, n., and *47, n., 1 Ibid. 340, n.; 1 Hilliard, Real Prop. 2d 
ed. 82, I 18 ; 1 Washb. Real Prop. 36, \ 84 ; Smith, Land, and Ten. Amer. ed. 
6, n.; M'Kee v. Pfout, 3 Dall. 486, 489 ; Pidge v. Tyler, 4 Mass. 546 ; Knox v. Jenks, 
7 Mass. 488, 494; Goodwin v. Hubbard, 15 Mass. 210, 214; Clay ». White, 1 Munf. 
162, 170 ; Barr" v. Galloway, 1 M'Lean, 476 ; Proprietors, &c. ». Permit, 8 N. H. 512 ; 
Ward v. Fuller, 15 Pick. 185 ; Holt v. Hemphill, 3 Ohio, 232 ; Helfenstine v. Gar- 
rard, 7 Ohio, part 1, 275 ; Hall v. Ashby, 9 Ohio, 96 ; Borland v. Marshall, 2 Ohio 
State, 314. 

2 Colony Laws, 85 ; 1 Washb. Real Prop. 34, n. 
s See Rev. St. Mass. (1836,) 407, j| 28. 

* Thomas v. Thomas, 10 Ired. 123. See, also, Tolar v. Tolar, 1 Dev. Eq. 456; 
Morris v. Ford, 2 Dev. Eq. 418 ; Tate v. Tate, 1 Dev. & Bat. Eq. 22, 23. 

6 See Chester v. Greer, 5 Humph. 26 ; also Stribling v. Ross, 16 111. 122, for the rule 
in that State. 

« Infra, <S 21. 

VOL. I. 16 



242 THE LAW OF DOWER. [CH. XII. 

dower could attach. 1 So in Talbot v. Armstrong, 2 where a grantee 
of lands failed to pay the purchase money or get his deed recorded, 
and afterwards surrendered the deed to the grantor, who conveyed 
to a third person, it was held that as against the latter, who had no 
notice of the first deed, it was void, and the widow of the first 
purchaser had no right of dower. 

9. And where a fraudulent grantee of lands conveyed the same t l o 
an innocent purchaser, who neglected to put his deed upon record, 
or take possession, until after proceedings had been instituted by the 
creditors of the fraudulent grantor to subject the lands to the pay- 
ment of their demands, it was held that his widow was not entitled 
to dower. 3 

10. The delivery of the conveyance to a third person for the 
benefit of the grantee, although the latter had not participated in 
the purchase, and was entirely ignorant of the transaction, will give 
the grantee such seizin as to entitle his widow to dower. Thus, in 
North Carolina, where a father purchased land, and took a convey- 
ance to his son, with an intent to give him the land, it was held that 
the title vested in the son, so as to entitle his wife to dower, though 
the deed was delivered to the father without the knowledge of the 
son. 4 

11. The common law distinction between seizin in deed and seizin 
in law may likewise be said to be in a great measure obliterated in 
the American States. 5 In this country, for most purposes, the heir 
is considered actually seized without entry. 6 Some of the cases, how- 
ever, do not recognize, in its full extent, this innovation upon the 

1 Emerson v. Harris, 6 Met. 475. 

s Talbot v. Armstrong, 14 Ind. 254. 

8 Stribling v. Ross, 16 111. 122. The Illinois statute provides that "all deeds, 
mortgages, and other instruments of writing which are required to be recorded, 
shall take effect, and be in force from and after the time of filing the same for 
record, and not' before, as to all creditors, and subsequent purchasers without 
notice ; and all such deeds and title papers shall be adjudged yoid as to all such 
creditors and subsequent purchasers without notice, until the same shall be filed 
for record." The above case was decided upon the construction given this statute. 
See, also, Martin v. Dryden, 1 Gilm. 187. 

* Tyson v. Tyson, 2 Ired. Ch. 137. 

5 Bush v. Bradley, 4 Day, 305, 306, approved in Chew v . Corn's of Southwark, 2 
Rawle, 160; Walker's Intr. 2d ed. 268, 314; Burrill's Law Diet. tit. "Seizin." 

« 1 Hilliard, Real Prop. p. 82, \ 18. See Brown v. Wood, 17 Mass. 68; Green v. 
Chelsea, 24 Pick. 71, 78 ; Davis v. Mason, 1 Peters, 506 ; Jackson v. Sellick, 8 John. 
208 ; Borland v. Marshall, 2 Ohio St. R. 308. 



CH. XII.] SEIZIN AS A REQUISITE OP DOWER. 243 

common law. Thus, while it has been held that the law gives to the 
heir or devisee constructive seizin of wild or vacant lands without 
entry or other equivalent act of seizin, the contrary has been de- 
termined with respect to improved-lands. 1 This point is of but little 
importance, however, to the consideration of the right of dower, for 
the reason, as will hereafter be shown, 2 that seizin in law is equally 
effectual with seizin in deed, to enable the right to attach. 
. We pass now to the further consideration of the main subject of 
this chapter. 

Mere right of entry insufficient to give dower. 

12. It has been remarked, that at common law, seizin by the hus- 
band, either in deed or in law, at some period during the coverture, 
was an essential requisite of dower. 3 A mere right of entry was in- 
sufficient to confer that estate. The extent to which this doctrine 
was carried is well illustrated by many cases to be found in the old 
books. Thus, in a case put by Perkins, it is said that " if a man 
seized of land in fee be disseized of the same, and then take a wife, 
and die without re-entering, she shall not have dower." 4 The ma- 
terial point in this case, it will be observed, consists in the fact that 
the seizin of the husband was divested by the entry of the disseizor 
before the marriage, and continued thus divested during all the pe- 
riod of the coverture. The husband had a right of entry upon the 
lands, but this was not sufficient to give dower to the wife. Had he 
defeated the wrongful estate of the disseizor by ousting him from 
the possession at any time during the coverture, the seizin would 
have been restored to him, and his wife would have been entitled to 
her dower ; but inasmuch as the right of entry was not asserted, 
there was no moment of time during the coverture when, in contem- 
plation of law, he was seized of the premises. This is one of the 
instances mentioned by Perkins in which the husband may prejudice 
the wife in her dower by his laches of entry. 5 

13. Another case, of similar import, is also given by Perkins : 
" If a man die seized in fee, and a stranger abates in the same land, 

1 Jackson v. Howe, 14 John. 405 ; Ward v. Fuller, 15 Pick."185 ; Brown v. Wood, 
17 Mass. 68 ; Green v. Chelsea, 24 Pick. 78. 

» Infra, § 24. 8 Ante, \ 1. 

*Perk. sec. 366; and see Co. Litt. 222, a.; Winnington's case, 2 Co. 59. 
6 Perk. sec. 366. 



244 THE LAW OF DOWER. [CH. XII. 

and after the abatement the heir marries, and dies without entering 
thereon, his wife shall not hare dower of the same land." 1 Here, it 
will also be noticed, the seizin which the law cast upon the heir at 
the death of the ancestor, was divested by the abatement before the 
marriage, and, as in the preceding case, the right of entry which 
existed in the husband, and which was insufficient to confer dower, 
was not prosecuted to an actual seizin during his lifetime. Hence, 
there was no seizin during the coverture, and no title of dower could 
attach on behalf of the wife. 2 The result would be the same in a 
case where the ancestor has been disseized during his lifetime, and 
dies before entry. Under such circumstances a mere right of entry 
would descend to the heir, and in respect of such right it would 
make no difference whether it came to him before or after the mar- 
riage. In either case, until he prosecuted the right to an actual 
seizin, the wife would not be entitled to dower. 3 According to a 
recent decision, however, an abatement can not take place, if the land 
be in the possession of a tenant for years. 4 

14. The same principle has been applied to the case of land held 
upon condition on the part of the grantee: "And if a man enfeoff 
a stranger upon condition on the part of the feoffee, and the feoffor 
marries a wife, and the condition is broken, and the feoffor dies with- 
out an entry made by him, or by any other in his name, his wife 
shall not have dower of the land." 5 The reason of this is, that an 
entry or claim for condition broken is necessary to revest the estate 
in the grantor, and, until that be made, he has no more than a right 
or title of entry for such breach. 6 The same doctrine applies where 
there has been a forfeiture for waste : " If a man seized in fee of one 
acre, lease it to a stranger for life ; and after takes a wife, and the 
lessee doth waste, and the lessor dies, his wife shall not have dower 
of this land." 7 

15. So in case of an exchange of lands before marriage, an entry 
was necessary,, at common law, to perfect the seizin and give a right 
of dower : "If J. S., seized in fee of one acre of land, exchange the 

i Perk. sec. 367. 2 Plow. 371 ; 1 Greenl. Cruise, 170, \ 20. 

» Park, Dow. 26. 

* Bushby v. Dixon, 3 Barn. & Cress. 298, 10 Eng. C. L. 85 ; see infra, jj 25. 
» Perk. sec. 368. 

6 Park, Dow. 25; 4 Kent, 38; Thompson o. Thompson, 1 Jones' Law R. (N. C.) 
430, 431 ; see Beardslee t>. Beardslee, 5 Barb. (N. T.) R. 324. 
' Perk. sec. 374. 



CH. XII.] SEIZIN AS A REQUISITE OP DOWER. 245 

same acre with T. K. for another acre in fee, and J. S. enters and 
executes the exchange for his part, viz. for the acre which was put in 
exchange to him ; and T. K. takes a wife, and dies without entering 
by force of the exchange, now his wife shall not have dower of the 
one acre, nor of the other. And the reason is, because the husband 
was not seized of that land, either in deed or in law, during the 
coverture." 1 

Judgment alone inoperative to confer seizin. 

16, The prosecution of a right or title, even to judgment, if the 
husband died before entry or execution served, was formerly inef- 
fectual to entitle the widow to dower, for the judgment alone, it was 
determined, could not confer a seizin. " If a man hath judgment 
to recover land, and marries, and dies before entry or execution 
sued, his wife shall not have dower." 2 This rule, before the changes 
introduced in England by recent statute, was held to apply, not only 
to recoveries in adverse suits, but also to common or feigned recov- 
eries; and it was decided that until the return of the writ of execu- 
tion, or, at least, until seizin was delivered, no seizin was in the re- 
coverer, and consequently that no use could arise. 3 

Execution served by the heir ineffectual to confer dower upon the 
widow of the ancestor. 

17. So strict was the common law, in this respect, that service of 
execution after the death of the ancestor, at the instance of the heir, 
would not inure to the benefit of the widow of the ancestor, although 
when completed it had, in law, relation back to the act of the ances- 
tor, and was held to let in the heir by descent. 1 This fictitious sei- 
zin, or seizin by relation, was admitted for the purposes of tenure 
only, and the courts refused to so extend it as to confer upon the 
ancestor the incidents of actual seizin, or upon his widow the right 
to dower. The following quotation from Perkins, though somewhat 
obscurely worded, furnishes an illustration of this proposition : "And' 

i Perk. sec. 369. 2 Ibid. sec. 370 ; Plow. 43 is to the same effect. 

' Jenk. Cent. 249, Ca. 40, pi. 4 ; Witham v. LewiB, 1 Wils. 48, 55 ; Shelley's case, 
Sir W. Jones ; 10 Moor. 141 ; Park, Dow. 26 ; and see 4 Bro. P. C. 510 ; 1 Prest. 
Conv. 149. 

* Shelley's case, cited in preceding note ; Jenk. 249; Co. Litt. 361, b. 



246 THE LAW OP DOWER. [CH. XII. 

if there be husband and wife, and the husband is seized of one acre 
of land by a wrongful title, and is impleaded of the same acre by 
him that hath the right, and vouches a stranger to warranty, who 
enters into the warranty and loses ; and each of them hath judgment 
to recover against the other, 1 and the demandant enters, and the 
husband dies before execution sued against the vouchee, now his 
wife shall not have doWer.of this land [recovered by her husband] ; 2 
although the heir of her husband sue forth execution, and this land 
cometh in lieu of the land of which the husband was seized during 
the coverture." 3 

Necessity of actual entry abrogated by statute in England. 

18. Many of these subtle distinctions of the common law have 
been removed with regard to claims for dower arising under marriages 
contracted since January 1st, 1834, by the passage of the 3 & 4 
William IV., chapter 105. 4 The third section of that act provides as 
follows: "When a husband shall have been entitled to a right of 
entry or action in any land, and his widow would be entitled to 
dower out of the same if he had recovered possession thereof, she 
shall be entitled to dower out of the same, although her husband 
shall not have recovered possession thereof, provided that such dower 
be sued for or obtained within the period during which such right of 
entry or action might be enforced." As to marriages contracted 
prior to the date above named, the rule of the common law is still in 
force. 5 

In what cases actual entry required in the United States. 

19. The doctrine of the common law, requiring an actual entry in 
case of adverse possession, and treating the seizin as lost to the real 
owner without such entry, has not been adopted to any considerable 
extent in the United States. The statutes of Maine, Michigan, 
Missouri, and Arkansas expressly declare that the fact that the 

1 That is to say, the demandant hath judgment to recover against the tenant, and 
the tenant to recover over in value against the vouchee. Park, Dow. 27, note. 

2 These words, which accord perfectly with the sense of the passage, are added 
hy Mr. Greening. 

3 Perk, by Greening, sec. 375; and see Bro. Dow. pi. 9 and 18. 

4 Stat, at Large, vol. lxxiii. p. 999. See Appendix. 

5 2 Sudgd. Vend. & Pur. 222. 



CH. XII.] SEIZIN AS A REQUISITE OP DOWER. 247 

grantor in a deed is disseized at the time of the conveyance, shall be 
no bar to the operation of the deed. 1 Such, also, is held to be the 
effect of the legislation in Ohio. In a recent case decided in that 
State, the Supreme Court used this language : " That livery of sei- 
zin has never been essential, in Ohio, to the creation of a freehold 
estate, nor an entry necessary to perfect the title of an heir or de- 
visee, is well known to every lawyer. The most common instrument 
of conveyance is a deed of bargain and sale, which, without the aid 
of a statute of uses, transfers both the legal and equitable estate. 
Nay, further, a mere deed of quit claim or release is sufficient, even 
where the releasee has no prior interest in the land. But our de- 
parture from the English law does not stop here. For an adverse 
possession does not prevent the transfer of title either by deed, de- 
scent, or devise. Whatever title is held by the grantor, ancestor, 
or testator, may be thus transferred, notwithstanding the lands are 
adversely held by another. Holt v. Hemphill, 3 Ohio Rep. 232 ; 
Helfenstine v. Grarrard, 7 Ohio Rep. pt. 1, 275 ; Hall v. Ashby, 9 
Ohio Rep. 96. It might seem, from what was said in Holt v. Hemp- 
hill, that an adverse possession would be fatal to a deed ; but that 
such possession in no wise affects it, was expressly decided in Hall v. 
Ashby." 2 In general terms, the same doctrine may be said to pre- 
vail in a large proportion of the States. 

20. In some of the States a mere right of entry will give dower, 
although such right is not sufficient to support a conveyance as 
against an adverse possession. Thus, in Virginia, it is provided that 
"when a husband, or any other to his use, shall have been entitled 
to a right of entry, or action, in any land, and his widow would be 
entitled to dower out of the same if the husband or such other had 
recovered possession thereof, she shall be entitled to such dower, 
although there shall have been no such recovery of possession." 3 
Similar statutes have been adopted in Kentucky 4 and the District of 
Columbia. 5 



1 4 Greenl. Cruise, 66, note ; 2 Comp. Laws Mich. 838, g 7. 

2 Borland v. Marshall, 2 Ohio St. Rep. 308, 313 ; see, also, Bush v. Bradley, 4 
Day, 298 ; Chew v. Corn's of Southwark, 2 Rawle, 160 ; Strudwiok v. Shaw, 1 Hay. 
5; Tyson a. Harrington, 6 Ired. Eq. 333. 

» Code of Va. (1849,) p. 474, \ 2; copied, substantially, from 3 & 4 Will. IV. ch. 
105, 1 3. 
* Rev. Stat. Ky. (1852,) p. 393, \ 5 ; Stanton's Rev. vol. ii. p. 22, \ 5. 
» Rev. Code Dist. Col. (1857,) p. 200, g 6. 



248 THE LAW OF DOWER. [CH. XII. 

21. In several of the States, the old English rule, though in a 
somewhat modified form, is recognized and applied. In New York 
a statute was enacted, many years since, which declared that "every 
grant of lands shall be absolutely void, if, at the time of the delivery 
thereof, such lands shall be in the actual possession of a person 
claiming under a title adverse to that of the grantor." 1 A similar 
statute has been adopted in Kentucky. 2 But this statute does not 
apply when the grantee,* in person, or by tenant, is in possession 
when the deed is made ; nor where the deed is made to carry into 
effect a contract entered into prior to the passage of the enactment. 
In Massachusetts, where the owner of lands who had been disseized, 
made a deed of conveyance without having entered upon them, it 
was held that his deed passed no seizin to the grantee, and that the 
widow of the latter was not entitled to dower. 4 It is sufficient, how- 
ever, where the rightful owner has been disseized, and he wishes to 
make a valid conveyance of the title, for him to go upon some part 
of the premises with the vendee, and there deliver his deed, the sei- 
zin, in such case, passing with the deed. 5 Thus, in Oakes v. Marcy, 
where certain heirs at Jaw had been disseized, but had not lost their 
right of entry, and entered upon the lands, and there delivered their 
deed to the grantee, it was adjudged that the disseizin was so far 
purged by the entry as to give operation to the deed. 6 

Death of bargainee before enrollment. 

22. A difference of opinion appears to have prevailed among the 
early text writers and judges, with respect to the effect of the death of 
a bargainee of lands before enrollment. In one portion of his work 
on Uses, Chief Baron Gilbert states the law upon this point as fol- 
lows: "If lands are bargained and sold, and the bargainee dies 
before enrollment, his wife shall not be endowed ; for the right of 
dower is, according to the rules of the common law, consummate by 

i 1 Rev. Stat. 739, \ 147. 

» Rev. Stat. Ky. p. 164, ch. 12, jg 2 ; Kinsolving v. Pierce, 18 B. Mon. 782 ; Card- 
well v. Sprigg, 7 Dana, 37. 
8 Chiles v. Jones, 7 Dana, 529. 

4 Small v. Procter, 15 Mass. 495 ; 4 Dane's Abr. 16. 

5 1 Washb. Real Prop. 35, <S 80 ; Green v. Liter, 8 Cranch, 247, 250 ; Ellicott v. 
Pearl, 10 Pet. 412 ; Spaulding v. Warren, 25 Verm. 316. 

6 Oakes v. Marcy, 10 Pick. 195 ; see, also, accord. Knox v. Jenks, 7 Mass. 488, 
493 ; as to what constitutes a sufficient re-entry, see Buckitt v. Spofford, 14 Gray, 514. 



CH. XII.] SEIZIN AS A REQUISITE OP DOWER. 249 

the death of the husband ; and at the death of the husband, the bar- 
gain and sale had no effect to vest the lands in him ; and though the 
freehold, after enrollment, has a retrospect to the date of the deed, 
yet there can not thereby arise to the wife a new title of dower con- 
trary to the rule of common law, without an express provision of the 
statute." 1 But on a subsequent page he states the rule to be exactly 
the contrary of this: "If the estate shall be said to pass as to stran- 
gers, ab initio, (by relation,) for their disadvantage, it shall pass for 
their advantage. And therefore, if a bargain and sale be made to a 
man, and he dies, and then the deed is enrolled, it seems his wife 
ought to be endowed." 2 In Dimmock's case, 3 it was agreed by all 
the justices in the Court of Wards that where the death of the bar- 
gainee occurs before enrollment, the seizin by relation arising in virtue 
of the subsequent enrollment, is not effective for the purposes of 
dower. And in Sheppard's Touchstone, the point is said to have 
been ruled the same way on two occasions : " If A. bargain and sell 
his land held in capite, to B. in fee, and B. dieth before enrollment, 
and then the deed is enrolled ; in this case the heir of B. shall be in 
ward. (Contrarium tent, per Just. Berkley, Hil. 11 Car.) And so it 
was held by all the justices in Sir Walter Earl's case, Pasch. 15 Jac. 
Curia Ward. And yet in this [case] the wife of the bargainee shall not 
have dower, as was held by Anderson, Chief Justice, and Justice 
Walmsley, 3 Jac. Co. B., and again in Sir Robert Barker's case, 6 
Jac." 4 But Mr. Preston, in his edition of the work, remarks that this 
ruling is not law at the present day, and cites Owen, 70, in support of 
his opinion. In this view he is also supported by the editor of Gilbert 
on Uses, who remarks that "if it be once admitted, that after enroll- 
ment, the fee is in the bargainee by relation, all the consequences of 
a seizin in fee from the 'date of the deed must follow. . . . Therefore 
his wife must be dowable." 5 And it is said in Cro. Car. 217 that the 
widow of Baron Freville was awarded dower in a case of this descrip- 
tion. The same principle was applied to Freebench by the Court of 
King's Bench, in the modern case of Vaughan v. Atkins. 6 In that case, 
after long argument, in which the attention of the court was called 
to the principal case from Sheppard, above noticed, the court held 
that the admittance of the heir of a surrenderee of customary free- 



i Gilb. Uses, 96. 2 Gilb. Uses, 292. 

• Dimmock's ease, Owen, 149. * Shep. Touch. 226. 

6 Gilb. on Uses, by Sugden, 213, note. 6 Vaughan v. Atkins, 5 Burr. 2765. 



250 THE LAW OF DOWER. [CH. XII. 

hold, would have such relation to the surrender as to entitle the 
widow of the surrenderee to Freebench. " The vendor, his widow, 
and his heir, and all claiming under him," said Lord Mansfield, "are 
concluded from saying, after admittance, that the land did not pass 
from the day of the surrender. Upon that ground, the lessor of 
the plaintiff claimed the inheritance, whereof his brother (the surren- 
deree) died seized; and it should not be in his mouth to say, against 
the widow, that his brother did not die seized." 1 Mr. Park dissents 
from this conclusion: "His lordship, therefore," he observes, "seems 
to have denied that there may be a seizin by relation for some pur- 
poses, and not for other purposes; a position which it would be diffi- 
cult to reconcile with many cases in the old books. The argument 
of the Chief Justice would just as well prove that the wife of a re- 
coverer who dies before execution served, may, after the recovery is 
executed to the heir, claim her dower." 2 

23. In the American Reports a case or two may be found where 
the doctrine of relation was applied very much to the prejudice of 
the widow. These cases, however, are the converse of those referred 
to in the preceding section. Thus, in North Carolina it has been 
determined that registration of a deed is necessary to invest the 
grantee with seizin and entitle his widow to dower ; 3 yet, where the 
husband conveyed certain lands, (the concurrence of the wife not 
being necessary under the laws of that State to divest her inchoate 
right of dower,) but the deed was not registered until after his death, 
it was decided that such registration related back to the date of the 
conveyance, and defeated the dower of the grantor's widow. 4 The 

1 Vaughan v. Atkins, 5 Burr. 2787. 

2 Park, Dow. 30. Mr. Eoper supports the doctrine- of Lord Mansfield. "If the 
husband's title to the estate depend upon a bargain and sale (which by the statute 
of Henry the Eighth, [27 Hen. 8, ch. 16,] must be enrolled w.thin six months after 
its date,) and he die before the enrollment, but after the expiration of the six months, 
his widow will not be entitled to dower, because the bargain and sale was void, and 
consequently there was no seizin in the husband. The reverse, however, would be 
the case if the husband had died within the six months, and the bargain and sale 
had been enrolled within that period ; for the enrollment has relation to the date of 
the bargain and sale, so that the husband in his lifetime was seized of an estate of 
inheritance." 1 Roper, Husb. and Wife, by Jacob, 386. In a note he adds: "This 
seems to be the better opinion, though some of the authorities are at variance." 

3 Thomas v. Thomas, 10 Ired. 123. 

* Norwood v. Marrow, 4 Dev. & Bat. Law R. 442. "If A. bargain and sell his 
land to B. in fee, and then marry C. and die, and C. is endowed, and after the 
deed is enrolled ; in this case the dower of the woman shall be taken away by rela- 
tion." Shep. Touch. 226; Cro. Car. 217, 569. 



CH. XII.] SEIZIN AS A REQUISITE OP DOWER. 251 

same question was ruled the same way in Tennessee. 1 And in Mas- 
sachusetts, where lands were conveyed by the husband prior to the 
marriage, but the deed was neither acknowledged nor recorded, it 
was held that no right of dower attached. 2 But in that State, and 
probably in Tennessee, a deed is valid and effectual against the 
grantor and his heirs without registration. The doubt arising in the 
English law with respect to the consequences of an omission to make 
an enrollment during the lifetime of the husband, is dissipated by the 
act of 3 and 4 Will. IV. above referred to, in all cases coming within 
its operation. 3 In the United States the general rule is that an un- 
registered deed is good, not only against the grantor, his heirs and 
devisees, but also as against all persons having notice of the rights 
of the grantee ; 4 and therefore, as against all such persons, the wife 
is entitled to her dower. With regard to a portion of the States, 
however, as already noticed, this general proposition is subject to 
some degree of qualification. 

Seizin in law sufficient to confer dower. 

24. The rule of the common law making technical seizin of the 
husband an essential requisite of dower, did not require an actual 
seizin, or seizin in deed, but was satisfied with what is termed a seizin 
in law. 5 "And of seizin and possession in law, the wife shall be 
endowed." 6 Therefore, if lands descended upon a man who was mar- 
ried, or who entered into the marital contract at any time during the 
continuance of the seizin, his wife was held dowable of such lands, 
even though he died before entry; 7 nor did it make any difference, 
where the lands descended during the coverture, that a stranger 
entered and abated on the death of the ancestor; for, in contempla- 
tion of law, there was an interval of time between the death of the 
ancestor and the entry of the abator, during which the heir had a 
seizin in law. 8 Indeed, this seizin of the heir is said to be a continu- 



i Chester v. Greer, 5 Humph. 26. 2 Blood v. Blood, 23 Pick. 80. 

• Sec. 1. * Supra, \ 7. 

5 Co. Litt. 31, ».; Lift. sec. 448, 681 ; Perk. sec. 304, 370; Bro. Ab. tit. Dower, 
pi. 75 ; Sir W. Jones, 361 ; 2 Bl. Com. 131 ; 4 Kent, 37. 

« Perk. sec. 304. 

» Fitzh. N. B. 149 ; Perk. sec. 372 ; Litt. sec. 448, 681 ; Co. Litt. 31, a.; Gilb. Dow. 
391; Bro. Dow. 75; Park, Dow. 31. 

s Park, Dow. 32; 4 Kent, 37, 38 ; see Perk. sec. 371 ; Co. Litt. 31, a.; 1 Greenl. 
Cruise, 170, I 20. 



252 THE LAW OF DOWER. [CH. XII. 

ation of the ancestor's inheritance. 1 The difference between the case 
here stated, of a title acquired by descent during coverture, where, by 
operation of law the heir is eo instanti invested with seizin, and the 
case noticed in a previous section, 2 -where the abatement is supposed 
to take place before the marriage, is very distinctly marked. In the 
latter case a mere right of entry, or of action, exists in the heir at 
the time when the coverture commences, which right he fails to prose- 
cute to actual seizin. In the former case there is an instant of time 
during the coverture in which the husband is, in law, seized of the 
lands ; this instantaneous seizin is sufficient to enable the right of 
dower to attach, and a subsequent disseizin is not permitted to divest 
the right so attaching. 

25. The same principle applies to the following case found in Per- 
kins : "If land be leased for life, the remainder to J. S. in fee; and 
J. S. marries, and the lessee dies, and a stranger enters, and J. S. 
dies before any entry made by him, his wife shall have dower of the 
same land." 3 Here, upon the very instant of the death of the tenant 
for life, the remainder-man becomes seized in law of the freehold ; 
the subsequent intrusion, while operating to divest this seizin, can 
not affect the right of dower which, by reason thereof, has already 
attached. 4 But, such were the nice and shadowy distinctions some- 
times taken, that a different result was supposed to follow, where, 
upon the determination of a particular estate, the tenant of that 
estate held over. In such case it was considered necessary for the 
husband to enter and acquire a seizin in order to entitle his wife to 
dower. 5 This distinction was placed upon the ground that where a 
particular tenant held over after his estate was determined, the im- 
plied seizin which would otherwise have devolved on the remainder- 
man was thereby intercepted ; for the particular tenant had a con- 
tinuing seizin of the freehold, though under a wrongful title. 6 But 
where lands were in the occupation of tenants under leases for 
years, it was held that the reception of the rents after the determ- 
ination of the particular estate, by the person whose particular estate 
was determined, although under claim of ownership of the freehold, 
would not operate as a deforcement, for the reason that the posses- 



1 1 Roper, Husb. and Wife, 353. 2 Ante, gg 12, 13. 

3 Perk. see. 372. * Park, Dow. 32. 

5 Bro. Dow. pi. 29; 4 Kent, 38. 6 Park, Dow. 32, J 



CH. XII.] SEIZIN AS A REQUISITE OF DOWER. 253 

sion of the termors for years would preserve the seizin of all persons 
becoming entitled to the'reversion. 1 

26. In this country, as in England, seizin in law is invariably 
regarded as sufficient to support a title of dower. 2 Indeed, as we 
have seen, in many of the States, the distinction between seizin in 
deed and seizin in law is practically abolished. 3 

Conveyances under the Statute of Uses confer seizin in law. 

27. On a conveyance under the statute of uses, the bargainee or 
cestui que use, by operation of the statute, is seized in law imme- 
diately on the delivery of the deed. His widow, therefore, without 
reference to the late English dower act, would be dowable, although 
there had been no entry made, nor other act done by the husband 
to acquire a seizin in fact. 4 This principle has been resorted to in 
modern English practice, as a means of avoiding the necessity of an 
actual entry, in cases of exchange and partition. It has become 
usual to make exchanges and partitions by conveyances to uses, 
under which the estates are executed immediately on the delivery of 
the deed, and the right of dower attaches without any entry by the 
husband. And in the case of a bargain and sale under a common 
law authority to executors to sell, as the vendee, when ascertained 
by the instrument, is considered as a devisee, and the seizin is con- 
sequently transferred to him from the heir without entry, the same 
position would seem to hold good. 5 

Shifting uses. 

28. Another peculiarity of the doctrine of uses is that the free- 
hold may be made to shift from one person to another without the 

1 Carhampton v. Carhampton, 1 Ir. Term Rep. 576 ; Park, Dow. 33. And see 
Bushby v. Dixon, 3 Barn. & Cress. 298, 10 Eng. C. L. 85, where it is held that an 
abatement can not take place if the land be in the possession of tenant for years. 

2 Green v. Liter, 8 Cranch, 247 ; Blood v. Blood, 23 Pick. 80 ; Atwood v. Atwood, 
22 Pick. 283; Green v. Chelsea, 24 Pick. 78; Eldredge v. Forrestal, 7 Mass. 253; 
Brown v. Wood, 17 Mass. 68 ; Ware v. Washington, 6 Smedes & Marsh. 737 ; Mann 
v. Edson, 39 Maine, 25; Borland v. Marshall, 2 Ohio St. R. 308; Secrest v. M'Kenna, 
6 Rich. Eq. 72; Bowen v. Collins, 15 Geo. 100; 4 Kent, 39; 1 Washb. Real Prop, 
173, \ 5; 1 Hilliard, Real Prop, 82, g 18, 2d ed. 

» Ante, I 11. 

' Gilb. Uses, 96; Park, Dow. 34; 2 And. 161 ; 1 Greenl. Cruise,' 171, \ 21. 

6 Park, Dow. 35. 



254 THE LAW OF DOWER. [CH. XII. 

formality of a common law entry. In these cases, therefore, it would 
seem that if the tenant of the estate which is defeated by force of a 
conditional limitation, or proviso of cesser, holds over after the event, 
if he has the freehold at all, it would be under a new seizin, the result 
of a constructive disseizin of the person entitled to the benefit of the 
limitation or proviso. In this case, then, there would seem to be an 
intermediate seizin in law in the person in whose favor the shifting 
use operates, and if so, his wife would be dowable notwithstanding 
the deforcement. 1 

The doctrine of Uses in the United States. 

29. The Statute of Uses of 27 Henry VIII. has not been re-en- 
acted in any considerable number of the American States. In South 
Carolina, 2 Illinois, 3 and Missouri, 4 it has been adopted with but little, 
if any, modification. By the Revised Statutes of Delaware it is 
enacted that the legal estate shall, in all cases, accompany the use, 
and pass with it. 5 By the New York Revised Statutes it is provided 
that the party entitled to the possession and receipt of the profits of 
land, shall be deemed to have the legal estate to the same extent as 
the equitable interest. 6 A provision of similar import exists in the 
statutes of Indiana, 7 Michigan, 8 and Wisconsin. 9 In Rhode Island 
every deed and covenant to stand seized transfers the possession to 
the cestui que use without further ceremony. 10 In all those States 
which possess statutory enactments of this character, deeds of con- 
veyance made in pursuance thereof operate directly to convey the 
land to the cestui que use, and not merely to raise a use to be after- 
wards executed by the statute of uses. 11 And it is plain that con- 
veyances thus made may be said, in general terms, to invest the ces- 

1 These are the views expressed by Mr. Park on this subject. He remarks, how- 
ever, that he does not recollect to have met with any authority on the point. Park, 
Dow. 34. 

2 See Stat. S. C. vol. x. Index, "Uses." 

s Stat. 111. (1858,) vol. ii. p. 958, \\ 2, 3. 

« Stat. Misso. (1845,) p. 218, ch. 32, \ 1. 

s Kev. Stat. 1829, p. 89, \\. • 2 Rev. Stat. N. T. 3d ed. p. 13. 

i Rev. Stat. 1843, ch. 28; 1 Rev. Stat. 1852, p. 503, § 13. 

s 2 Comp. Laws Mich. (1857,) pp. 824, 825. 

9 Wis. Laws, (1849,) ch. 57, § 3; Laws 1858, ch.'84, \ 3. 

«• Rev. Stat. 1844, p. 260, \ 11 ; Rev. Stat. (1857,) p. 335, ch. 146, \ 1. 

11 1 Qreenl. Cruise, 340, note. 



CH. XII.] SEIZIN AS A REQUISITE OF DOWER. 255 

tui que use with seizin in deed, as well as seizin in law, and, as a 
"consequence, to entitle his wife to dower. 1 

Seizin of incorporeal hereditaments. 

30. In respect of incorporeal hereditaments, the general rule is, 
that the circumstances equivalent to an actual seizin of those here- 
ditaments which lie in livery are not necessary in order to confer a 
title of dower. Therefore, if the husband purchase a rent, and 
die before the day of payment, the wife is nevertheless entitled to 
be endowed. 2 The rule is the same if the rent come to the husband 
by descent. 3 The following case, from Perkins, exemplifies this gen- 
eral doctrine : " If a rent be granted to a man in fee, and he accepts 
the grant, and takes a wife, and at the day of payment the tenant 
of the land tenders the rent to the husband, and he will not receive 
it, but utterly refuses it, and dies before any receipt of the rent by 
him, or by any other in his name, or for him, and before anything 
paid to him in name of seizin of the rent, yet his wife shall have 
dower of the rent." 4 This conclusion appears to rest upon the 
principle that by the conveyance to, and acceptance of the grant by 
the husband, he acquired a seizin in law of the rent. 5 It was said, 
arguendo, in 2 Siderfin, 110, that " if a rent be granted to A. and 
his heirs, to commence after the death of B., and the grantee dies 
before B., yet his wife shall be endowed." 6 

Tortious seizin. 

31. A mere naked seizin without right, such as the seizin of a 
disseizor, 7 an abator, an intruder, a discontinuee, 8 or other person 
having the freehold and inheritance by wrong, is regarded by 

1 Upon the subject of Uses in the United States, see, also, 2 WaBhb. on Real Prop. 
142 et seg.; see, also, post, ch. 19, \ 18. 

2 Park, Dow. 35 ; Bro. Dow. pi. 35 and 71. 

s Bro. Dow. pi. 66 ; fol. 249, b. pi. 5. * Sec. 373. 

6 1 Roper, Husb. and Wife, by Jacob, 354. 

e See, also, with respect to curtesy in such cases, Co. Litt. 29, a.; Bro. Ten. per 
le curt. pi. 5 ; Perk. sec. 469. For a more extended view of the right of dower in 
rents, see post, ch. 18. 

' 17 E. 3, 24, admitted by the issue ; and see Litt. sec. 448 ; Countess of Berkshire 
v. Vanlore, Winch, 77; Partington's case, Clayt. 71. 

8 Bro. Discont. de possession, pi. 7 ; Bro. Dow. pi. 50 ; Fitz. Dow. 98 ; Perk. sec. 
'420 ; Park, Dow. 37 ; see post, ch. 17, \\ 20, 21. 



256 THE LAW OP DOWER. [CH. XII. 

the common law as sufficient to enable a right of dower to attach, as 
against all persons deriving title under such tortious seizin, until it 
be avoided by the entry or action of the person having the right, or 
by operation of the law of remitter. 1 Under this doctrine it has 
been held that if a tenant for years or at will make a feoffment in 
fee, his wife is entitled to be endowed until the feoffment is defeated, 
because the tenant, in making the feoffment, virtually becomes a dis- 
seizor, and acquires the freehold of the land by disseizin. 2 But as 
to a lessee for life, the rule is said to be different. The instantane- 
ous seizin which he acquires in making a feoffment in fee, is held not 
to amount to a disseizin, and to be insufficient to entitle his wife to 
dower. 3 The ground of this distinction is not very apparent. It 
would seem, upon principle, that in either case the feoffee would be 
estopped from denying the seizin of the husband. 4 In the Natura 
Brevium of Fitzherbert it is laid down as the law, that where a ten- 
ant for life makes a feoffment in fee, his wife shall have dower as 
against the feoffee, but not as against the lessor of her husband. 5 

32. In a Mississippi case, the common law doctrine respecting a 
tortious seizin was recognized and applied in its full extent. It 
was there held that a seizin of this description, though maintained 
by the husband for an instant only, is enough to entitle his wife 
to dower, as against strangers and those claiming under him. 6 In 
Pennsylvania, in a case where the husband was seized of certain 
lands, and, prior to his second marriage, placed his son in possession 
thereof, but there was no conveyance of the title, and the wife of the 
second marriage supposed the lands belonged to the estate of her 
husband ; and, after the death of the husband, the son set up a title 
adverse to his coheirs, and claimed to hold the premises under a 
parol gift from his father, dower was nevertheless allowed to the 
widow. 7 



1 Bro. Discont. de possession, pi. 7 ; Bro. Dow. pi. 50 ; Fitz. Dow. 98 ; Perk. sec. 
420; Park, Dow. 37; see post, ch. 17, \\ 20, 21. 

a Taylor's case, Sir W. Jones, 317 ; cited in Hitchcock v. Harrington, 6 John. R. 
293 ; 1 Prest. Abstracts, 355 ; Tud. Cas. 44. 

s Bro. Dow. pi. 30; 1 Boll. 676; Jenk. Cent. 3, Ca. 1 ; Co. Litt. 31, b., note 3. 

* Park, Dow. 44. 

5 Fitzh. N. B. 150, margin; accord. 1 Roper, Husb. and Wife, by Jacob, 368, 369. 

6 Randolph v. Doss, 3 How. Missis. 205. 
' Galbraith v. Greene, 13 S. & R. 85. 



CH. XII.] SEIZIN AS A REQUISITE OP DOWER. 257 



Joint seizin. 

33. The common law also imperatively requires, as a requisite of 
dower, that the seizin of the husband shall be a sole seizin. Upon 
estates held in joint tenancy no right of dower will attach. 1 This 
feature of the common law is preserved in 3 and 4 Will. IV., chapter 
105. 2 The rule requires that there shall be a sole seizin, both of the 
freehold and of the inheritance ; and if the husband have the freehold 
and inheritance by successive limitations, and either of these estates 
be a joint estate, the title of dower will be excluded. So stringently 
is this rule applied, that where one joint tenant aliens his share, 
whereby the joint tenancy is severed, and the possibility of sur- 
vivorship of the other joint tenant is destroyed, it is nevertheless 
held that the wife of the former shall not be endowed, 3 upon the 
principle, it is said, that the same act of the husband by which the 
joint estate is severed, operates to pass the fee of his moiety to the 
grantee.* But it is not necessary that the sole seizin should be of 
the entirety. A sole seizin of the freehold and inheritance in any 
particular share or purparty of lands, either as tenant in common, 
in coparcenary, or otherwise, will, to the extent of that share, confer 
the right of dower. 5 And any act which severs or determines the 
joint tenancy, so as to leave a sole seizin in the husband during the 
coverture, will remove the impediment, and render the wife dowable. 6 
But in case of partition between joint tenants, unless made by con- 
veyances to uses, 7 the wife would not be dowable until the partition 
was executed by entry. 8 

Joint seizin rendered sole by relation. 

34. There are cases to be found in the old books, showing that 
after the death of the husband a joint seizin may, in some instances, 
become a sole seizin, by relation, and the widow consequently be 

iLitt. sec. 45; 1 Roll. Abr. 676; Fitzh. N. B. 147, (E.); Cowley v. Anderson, 
Totli. 83. This last case refers to curtesy. 
2 Sec. 2. 

s Fitzh. N. B. 150; Bro. Dow. pi. 30; Co. Litt. 31, b.; 4 Kent, 87. 
* Ibid. 1 Roper, Husb. and Wife, 367, (by Jacob.) 

6 Litt, sec. 45; Co. Litt. 37, b.; 1 Roll. Abr. 676; Sutton v. Rolfe, 3 Levinz, 84. 
«'Gilb. Uses, 404; Perk. sec. 337 ; Park, Dow. 40. 

' See ante, g 27. 8 Park, Dow. 34. 

VOL. I. 11 



258 THE LAW OF DOWER. [CH. XII. 

entitled to dower. These are cases of joint limitations to husband 
and wife ; as if lands be given to husband and. wife, and the heirs 
of the husband, or the heirs of their two bodies, or to their heirs, 
and the husband die; here the wife, if she do no act, subsequent 
to the decease ,of her husband, amounting to an agreement to the 
joint estate, may waive it, and claim her dower: "For," says Per- 
kins, " she shall not be compelled to take by purchase immediately 
against her will, and she could not disagree to it before the death of 
her husband ; and the bringing of the writ of dower is a disagree- 
ment to take according to the purchase, and that shall relate to the 
time of the purchase." 1 And Lord Coke remarks that " thereby in 
judgment of law the husband shall be said sole seized ah initio, for 
otherwise the wife can not be endowed, and yet in truth the hus- 
band and wife were joint tenants during all the coverture; but now 
the refusal shall have such relation, that in judgment of law, the 
husband was ah initio sole seized ; and therewith agrees the book in 
11 Ed. III., tit. Dow. 63, where the case was, lord and tenant of a 
house held by homage, and 10s. rent. The tenant enfeoffed W. ; the 
lord granted the seigniory to husband and wife in tail ; W. attorned, 
the husband died, the seigniory survived to the wife, and she brought 
a writ of dower, in bar of which the lord pleaded acceptance of hom- 
age, by which it was admitted that the writ of dower did lie." 2 

35. A question is made by Perkins, whether, if the grant be made 
to the husband and wife for the life of the husband, the remainder 
to the right heirs of the husband, the wife can disagree : " Because," 
he remarks, " the estate of the wife is determined by the death of 
the- husband." He adds, also, that "it hath been said that a dis- 
agreement can not be had to an estate after the estate determined." 3 
In the next section, however, he proceeds to answer this objection 
as follows : " But it seems, in this case, the wife may disagree by 
bringing a writ of dower, although the estate be determined; for 
otherwise, by such means, the wife might be ousted of her dower in 
every purchase made by her husband ; and yet during the marriage, 
she is always by law under the government of the husband, in such 
manner that she can not give away any manner of profit arising out 

i Perk. sec. 352. 

2 Butler & Baker's case, 3 Co. 27, b.; see, also, 1 And. 350 ; Fitzh. N. B. 194, B.; 
Van. Abr. Dower, H., pi. 12; Baa Abr. Joint Tenants, A. It seems that a widow's 
disclaimer by deed will be sufficient. See Townson v. Tickell, 3 Barn. & Aid. 31 ; 
5 Eng. C. L. 219. 

« Perk. sec. 352. 



CH. XII.] SEIZIN AS A REQUISITE OF DOWER. 259' 

of the same lands, without his leave ; and she can not disagree to the 
same estate during the marriage." 1 



Transitory seizin. 

36. Where the seizin of the husband is for a transitory instant 
only, as where the same act which gives him the estate also conveys 
it out of him, or where he is the mere conduit employed to pass the 
title to a third person, no right of dower arises. Perhaps no prin- 
ciple of the law can be said to have become more firmly or thoroughly 
established than this. 2 

37. Occasional instances of the application of this doctrine may be 
found in the ancient books of the law. Thus, in the 14 of Henry 
IV. we find the courts holding that if one joint tenant make a feoff- 
ment in fee of his moiety, his wife shall not be endowed of such 
moiety, for the reason that he had a sole estate but for a transitory 
instant of time. 3 The same act which gave him a sole estate also 
conveyed it away from him. And upon this principle it was also 
adjudged that if a " tenant for life makes a feoffment in fee and dies, 
the wife shall not have dower, for though, the husband gave a fee 
simple by alienation, yet he was never seized in fee so as she might 
have dower." 4 So in the 3 Henry IV. it was determined that "if a 
lessee for life leases for the life of another, his wife shall not be en- 
dowed, for he gains this fee in an instant." 5 The same doctrine has 
been applied in the case of a conuzee of a fine: "If the conuzee 
of a fine doth grant and render the land to the conuzor, the wife of 
the conuzee shall not be endowed." 6 A case reported by Croke 
may also be referred to as furnishing an illustration of this rule. In 
that case, the husband, who was seized in special tail, made a deed 
of feoffment to the use of himself for life, and afterwards to the use 

1 Perk. sec. 353; and see Greening's note to see. 352, accord.; 1 Roper, Husb. 
and Wife, by Jacob, 361. For a further discussion of the subject of joint tenancy 
as connected with the law of dower, see infra, chap. 16, where the American cases 
are collected and considered. 

2 2 Bl. Com. 132; 4 Kent, 38 ; 1 Roper, Husb. and Wife, by Jacob, 374; Park, 
Dow. 43. 

s 14 H. 4, 13, b.; 34 E. I. Dow. 179; and see Fitzh. N. B. 150, (K.); Co. Litt. 31, b.; 
Jenk. Cent. 3, Ca. 1 ; and vide supra, \ 33. 

* Bro. Dow. pi. 30 ; 1 Roll. 676; Jenk. Cent. 3, Ca. 1 ; Co. Litt. 31, b., note 3. See, 
however, upon this point, ante, \ 31. 

6 3 H. 4, 6. 6 Lord Cromwell's case, 2 Co. 77. 



260 THE LAW OF DOWER. [CH. XII. 

of his son in tail, and executed a letter of attorney to make delivery. 
Before livery he took the demandant to wife, and after livery to 
those uses was made, the husband died, and the question was whe- 
ther the wife was dowable of the lands. It was adjudged that she 
was not : That the estate held by the husband before the feoffment 
was not subject to dower, and the interest acquired by virtue of the 
feoffment and livery being eodem instanti drawn out of him, invested 
him with no new seizin upon which that right attached. Three cases 
were there put in which the wife would not be dowable ; as where a 
tenant for life, or a joint tenant makes a feoffment, or where a mar- 
ried man takes a fine, and by the same fine renders the lands to 
another in tail. It was held that in each of these cases, by reason 
of the transitory nature of the seizin, there would be no right of 
dower. 1 

38. Nash v. Preston 2 is another old case showing that a transitory 
seizin is insufficient to give dower'; and in the later case of Sneyd v. 
Sneyd, 3 the same principle was recognized by Sir Joseph Jekyll, 
Master of the Rolls. In that case a question arose whether certain 
copyhold lands were to be included in an assignment of dower. On 
behalf of the widow it was insisted that they should be so included, 
for the reason that the" husband had the freehold of the copyhold 
estates in him as lord of the manor, the manor having been, pur- 
chased by him, and containing as well copyhold as freehold. It was 
also claimed that if the husband had granted out the copyhold estates, 
yet the instantaneous seizin he acquired at the time of the purchase 
was sufficient to entitle his wife to her dower, and that no after act 
of his could divest the right which had thus once attached. But the 
Master of the Rolls did not concur in this view of the law: "Though 
no cases have been cited on either side," he observed, "and this seems 
to be a new point, yet I should think that this instantaneous seizin 
of the freehold of the purchased copyhold estates in the husband, 
will not entitle the defendant's wife to her dower, for notwithstand- 
ing there may be no case of the same nature with this, yet it may 
be governed by reason and general rules of law; as, for instance, 
the conuzee of a fine is not so seized as to give his wife a title to 



1 Anoott v. Catherick, Cro. Jao. 615. See opinion per Spencer, Judge, in Stow 
v. Tifft, 15 John. B. 462, 463. 
3 Nash v. Preston, Cro. Car. 190. 
> Sneyd v. Sneyd, 1 Atk. 442. 



CH. XII.] SEIZIN AS A REQUISITE OF DOWER. 261 

dower ; and in the case of a use the widow of a trustee has been de- 
termined to have no claim of dower from such a momentary seizin." 1 

Conveyance by deed and simultaneous reconveyance by mortgage; 
mortgagor has a transitory seizin only. 

39. To this principle may also be referred the well-settled doc- 
trine that where a deed for lands is executed, and simultaneously 
therewith the purchaser gives back a mortgage upon the same lands 
to secure any portion of the purchase money, he acquires, as against 
the holder of the mortgage, no such seizin as will entitle his wife to 
dower. The deed and mortgage, although in themselves separate 
and distinct instruments, nevertheless, under the circumstances above 
stated, are regarded as parts of the same contract. They take effect 
at the same time, and the giving of the deed upon the one part and 
of the mortgage upon the other, is held to constitute but a single 
act, and to result in clothing the purchaser with the seizin for a 
transitory instant only. With but rare exceptions, this is the estab- 
lished doctrine of the American courts. 2 

40. Nor is it necessary that the mortgage should be made directly 
to the vendor. It is sufficient if it be made to a third person for his 
benefit. 3 And where the mortgage is of even date with the deed, 
and both instruments are recorded at the same time, the mortgage, 
although not made to the vendor, will be presumed to have been 

i See, also, Vin. Abr. tit. Dower, (G.,) pi. 5; 2 Vera. 58; Tooker's case, 2 Co. 67. 

2 Holbrook «. Finney, 4 Mass. 566 ; Clark v. Munroe, 14 Mass. 351 ; Coates v. 
Cheever, 1 Cow. 460 ; Jackson v. Dewitt, 6 Cow. 316 ; Stow v. Tifft, 15 John. 458, 
463 ; Bell v. Mayor of New York, 10 Paige, 49 ; Kittle v. Van Dyck, 1 Sandf. Ch. 76 ; 
S. C. 3 N. Y. Leg. Obs. 126 ; Cunningham v. Knight, 1 Barb. 399 ; Mills ». Van 
Voorhies, 23 Barb. 125; S. C. 20 N. Y. (6 Smith,) 412; Bullard v. Bowers, 10 N. H. 
500 ; Griggs v. Smith, 7 Halst. 22 ; Bogie v. Rutledge, 1 Bay, 312 ; Crafts v. Crafts, 
2 McCord, 54; McCauley v. Grimes, 2 Gill & John. 318; Grant v. Dodge, 43 Maine, 
489; Whitehead v. Middleton, 2 How. Miss. 692; Welch v. Buckins, 9 Ohio State 
R. 331 ; Gilliam v. Moore, 4 Leigh, 30 ; Nottingham v. Calvert, 1 Smith, (Ind.) 399 ; 
8. C. 1 Carter, 527 ; Eslava v. Lepretre, 21 Ala. 504 ; Wheatley v. Calhoun, 12 
Leigh, 264 ; Adams v. Hill, 9 Fost. N. H. 202 ; Smith v. Stanley, 37 Maine, 11 ; 
Young v. Tarbell, Ibid. 509; Mayburry v. Brien, 15 Pet. 21; Reed v. Morrison, 12 
S. & R. 18; Rands v. Kendall, 15 Ohio R. 671 ; Sherwood v. Vandenburgh, 2 Hill, 
303; Hobbs v. Harvey, 4 Shepl. 80; Gully v. Ray, 18 B. Monr. 107, 114; Garton's 
Heirs v. Bates, 4 B. Mon. 366 ; Gammon v. Freeman, 31 Maine, 243 ; Moore v. Rol- 
lins, 45 Maine, 493. This rule is also embodied in the statutes of several of the 
States. See ch. 23. 

3 Cunningham v. Knight, 1 Barb. 399. 



262 THE LAW OF DOWER. [CH. XII. 

executed for the purchase money cotemporaneously with the convey- 
ance, and the right of dower of the wife of the mortgagor will there- 
fore be limited to the equity of redemption. 1 Nor does it make any 
difference that other premises of the mortgagor are included in the 
same mortgage as a farther security for the purchase money. 2 And 
where the vendor never had the legal title, but procured his own 
vendor to make a conveyance to the vendee of the former, and at 
the same time took from such vendee a mortgage to himself for the 
purchase money, the same principle applies. Thus, where A. had 
purchased land from B. by title bond, and after paying for the land, 
but before receiving a conveyance, sold to C, and by agreement a 
deed was executed by B. directly to C, and C. at the same time 
executed a mortgage to A. to secure the purchase money due from 
C. to A., it was held that the wife of C. was not entitled to dower 
as against the mortgagee. 3 ,So where A. had given his note to B. 
for a tract of land, and by agreement B. conveyed the land to C, 
who therefor, and at the same time, conveyed another tract of land 
to A., and A. at the same time gave a mortgage thereon to B. as 
security for the payment of the note of A., it was held that the 
momentary seizin of A. did not entitle his wife to dower in the 
premises thus conveyed to him by C. 4 And if the purchaser make 
a deed of trust to secure the purchase money, instead of a mortgage, 
it is equally effectual to exclude the dower of his wife. 5 

41. The rule is the same where a third person advances the con- 
sideration money for the lands, and takes from the vendee, to whom 
they are conveyed by tbe vendor, a mortgage to secure the repay- 
ment of the money thus advanced. It has been determined in the 
courts of several of the States that in cases of this description, the 
right of dower of the wife of the vendee is subordinate to the lien 
of the mortgage. 6 

42. A case was recently determined in Virginia in which the rule 
now under consideration received a very liberal construction. By 

i Cunningham v. Knight, 1 Barb. 399. See Moore v. Rollins, 45 Maine, 493. 

2 Moore v. Rollins, 45 Maine, 493. 

s Welch v. Buckins, 9 Ohio State Rep. 331. 

* Gammon v. Freeman, 31 Maine, 243. 

5 Gilliam v. Moore, 4 Leigh, 30 ; see Moore v. Gilliam, 5 Munf. 346, dubitanter. 

6 Kittle v. Van Dyck, 1 Sandf. Ch. R. 76 ; S. C. 3 N. Y. Leg. Obs. 126 ; Gammon 
v. freeman, 31 Maine, 243 ; Smith „. Stanley, 37 Maine, 11 ; Clark v. Munroe, 14 
Mass. 351 ; Mayburry v. Brien, 15 Pet. 21 ; see Cunningham v. Knight, 1 Barb. 
399; 4 Kent, 39; 1 Washb. Real Prop. 176. 



CH. XII.] SEIZIN AS A REQUISITE OF DOWEK. 263 

the terms of a contract for the sale of land, the vendee was to execute 
a mortgage to secure the purchase money, immediately upon receiv- 
ing a conveyance, but by reason of some disagreement as to the 
terms of the mortgage, its execution was postponed some ten months 
after the deed was delivered. It was held, however, that in equity 
the mortgage was to be treated as having been delivered at the time 
agreed upon, and consequently that the rights of the mortgagee were 
paramount to the claim of dower. 1 

43. In the case of M'Cauley v. Grimes, 2 lands came to certain 
parties by descent. They agreed by parol that the entire estate of 
the ancestor should be equally divided among them, and in pursuance 
of this agreement one of the parties, who had received from the an- 
cestor prior to his death a conveyance for a portion of his estate, 
reconveyed the same to a coheir, the latter at the same time giving 
bonds to all the heirs for the payment to each of a certain stipulated 
sum of money for their respective shares in the lands so conveyed to 
him, and securing the payment thereof by mortgage upon the same 
lands. It was held that his widow was not entitled to dower as 
against the mortgage. And where the husband had acquired a seizin 
of lands to enable him to mortgage the same, and the wife joined in 
the mortgage, but failed to acknowledge it, it was decided that she 
was not dowable of the lands. 3 But where lands had been con- 
veyed subject to a right of repurchase in the grantor, it was held 
that the transaction did not constitute a mortgage, and that the wife 
of the grantee was entitled to dower. 4 

44. It is not essential to the application of this rule that the two 
instruments should correspond in date, provided they are delivered 
at the same time, as they take effect from the time of delivery only. 
And it is competent to show by parol at what time the delivery was 
actually made. 5 

45. The result is the same, so far as the right of dower is con- 
cerned, whether the reconveyance by the vendee be in fee, or for 
life, only. In a case which arose in New Hampshire, a tract of land 
was conveyed in fee by a father to his son, and the son at the same 
time reconveyed to the father for the life of the latter. The deed 

i Wheatley v. Calhoun, 12 Leigh, 264. 
s M'Cauley v. Grimes, 2 Gill and John. 318. 

3 Bogie v. Kutledge, 1 Bay, 312. * Chase's case, 1 Bland, 206. 

SMayburry v. Brien, 15 Pet. 21; Reed ». Morrison, 12 S. & R. 18; 1 Washb. 
Real Prop. 178. 



264 THE LAW OF DOWER. [CH. XII. 

of reconveyance contained a stipulation that the son should not be 
disturbed in his possession of the premises so long as he performed 
the conditions of a certain bond executed by him, by which he had 
undertaken to furnish a maintenance to the father for the period of 
his natural life. After holding the land for several years, the son 
left the country, and thenceforth neglected to furnish the stipulated 
maintenance ; whereupon the father entered upon the premises, and 
continued in possession until his death. The son died during the 
lifetime of the father, and his widow applied for dower in the land. 
It was held that although the reconveyance was intended as a secu- 
rity for the performance of the conditions of the bond, it neverthe- 
less did not constitute a mortgage. It was also held that the seizin 
acquired by the son was not such as would entitle his widow to dower. 1 
With regard to this case, it will be observed, that although the re- 
conveyance did not affect the reversion, but left that estate in the 
son, yet as to the present freehold he had but a transitory seizin. 
That estate passed from him by the same transaction which conveyed 
it to him. And as the common law does not give dower in a rever 
sionary interest where there is an outstanding precedent freehold 
estate, 2 and as the father had entered for breach of the conditions of 
the bond, while the son was living, and so became seized in fact of 
the estate for life, it is clear that the decision of the court was strictly 
in accordance with principle. 3 

46. Cases have been decided in Kentucky which appear to con- 
flict, to some extent, with the general current of authority upon the 
doctrine above discussed. In one case a purchaser of lands, upon 
the same day of receiving the conveyance, executed a mortgage of 
the same lands to the creditors of the vendor, in satisfaction of their 
demands against the latter. It was held that the dower right of the 
wife of the purchaser was paramount to the lien of the mortgage. 4 
The same ruling was made in a case where a grantee of lands, at the 
time of receiving the conveyance, reconveyed them to a third person 
in trust to secure the payment of certain debts due from the grantor. 5 

47. One important element of the rule above considered should 
here be noticed. In order to deprive the wife of her dower, the 

i Moore v. Esty, 5 N. H. 479. 2 Supra, ch. 11, | 5; Infra, ch. 15. 

* Park on Dower, 154; Infra, ch. 15. 

4 McClure v. Harris, 12 B. Mon. 261; see, also, Blair v. Thompson, 11 Gratt. 441. 

5 Tevis v. Steele, 4 Mon. 339 ; Bailey v. Duncan, Ibid. 256 ; but see Gully v. Ray, 
18 B. Mon. 114. 



CH. XII.] SEIZIN AS A REQUISITE OF DOWER. 265 

claim of the mortgagee must proceed from the same transaction that 
gave the husband his seizin. Therefore, where a mortgage was given 
by the vendee to the vendor, to secure the purchase money of the 
lands mortgaged, and afterwards a third person discharged the mort- 
gage, and took a new mortgage to himself from the vendee to secure 
the repayment of the moneys advanced for that purpose, it was held 
that the wife of the vendee was entitled to dower. 1 And in the 
same State it was determined that where it is claimed in defence to 
an action for dower, that a mortgage for the purchase money was 
executed by the husband simultaneously with the delivery to him of 
the deed, the onus rests upon the defendant of showing that the two 
instruments constituted but one transaction. 2 

48. A case recently decided in New Hampshire, by reason of its 
peculiar character, is deserving of especial notice. Certain lands 
in Lancaster were conveyed by A. to B., on the 2d of June, 1821. 
On the 9th of the same month, C. conveyed to B. certain other lands 
in Greenland, and B. immediately executed to A. a mortgage upon 
the lands in Greenland, to secure the purchase money of the lands 
in Lancaster. The court, acting upon the idea that here was but a 
transitory seizin of the premises situate in Greenland, refused to al- 
low the widow of the vendee to be endowed thereof, except upon 
condition that she contributed to the satisfaction of the mortgage 
debt. 3 The correctness of this decision has been questioned, and 
with apparent reason. 4 If the right to be endowed is to be tested 
by the simple question whether the seizin is transitory only, without 
reference to the character of the interest actually acquired by the 
husband, the ruling of the court was undoubtedly correct. But it 
is believed that this is not the true test to be applied. If the hus- 
band mortgage lands of which he is seized, to a third person, to 
secure a debt which does not originate from, and has no connection 
with, the purchase of the lands, the general rule is that the wife is 
not affected by the mortgage ; and the fact that the mortgage is ex- 
ecuted immediately after the seizin has attached, will not, it is ap- 
prehended, make any material difference in the case. In Maine the 
question has been decided directly to the contrary of the ruling of 
the New Hampshire court. A husband, at the same time that he 



1 Gage v. Ward, 25 Maine, 101. 2 Grant v. Dodge, 43 Maine, 489. 

8 Adams v. Hill, 9 Fost. N. H. 202; and see Gammon v. Freeman, 31 Maine, 243. 
* 1 Washb. Real Prop. 176, note. 



266 THE LAW OE DOWER. [CH. XII. 

received a deed for lands, conveyed them by deed to a third person, 
and it was determined that inasmuch as he had been seized bene- 
ficially, although for an instant only, the wife should have her dower, 1 
and this holding would seem to be in accordance with correct prin- 
ciple, and the general tenor of the authorities. 

Instantaneous seizin. 

49. Subject to the qualifications and exceptions set forth in the 
foregoing division of this chapter, the rule of the common law is, 
that a beneficial seizin by the husband, for a single instant of time, 
is sufficient to clothe the wife with the right of dower. 2 Instances 
of the application of this rule have been noticed on a previous page ; 
as where lands descend upon the husband during the coverture, and 
a stranger abates upon them in the instant of the ancestor's death ; 3 
or where the husband is seized of a remainder or reversion expectant 
upon an estate of freehold, and the latter estate determines during 
the coverture by the expiration of the time comprised in its limita- 
tion, and a stranger immediately intrudes upon his seizin. 4 In either 
of these cases the instantaneous seizin is sufficient to enable the es- 
tate of dower to attach. This principle is further illustrated by the 
old and often quoted case of Broughton v. Kandall, 5 which arose in 
Wales. In that case a father was tenant for life, remainder to his 
son in tail, remainder to the right heirs of the father. Both father 
and son were attainted of felony, and executed at the same time, 
being both hanged in one cart. The son had no issue of his body. 
It was proved by witnesses who were present at the execution that 
the father moved his feet after the death of the son, and, upon this 
evidence, it was found by verdict that the father died seized of an 
estate in fee by survivorship, of which his wife had a right to be 
endowed, and she had judgment accordingly. 6 The common law 
rule that instantaneous seizin, accompanied by a beneficial interest 

i Stanwood v. Dunning, 2 Shep. 290; see Tevis v. Steele, 4 Mon. 339. 
2 Co. Litt. 81, a.; 2 Bl. Com. 132; 1 Roper, Husb. and Wife, by Jacob, 373; 4 
Kent, 39. 
a Ante, g 24. i Ante, g 25. 

5 Broughton v. Randall, Noy, 64 ; Cro. Eliz. 502. In the latter book the facts are 
somewhat differently stated. See 2B1. Com. 132. 

6 With respect to questions of survivorship between persons perishing by the same 
calamity, see Taylor v. Diplack, 2 Phill. 261 ; 1 Greenl. Ev. gg 29, 30. 



CH. XII.] SEIZIN AS A REQUISITE OE DOWER. 267 

in the husband, is sufficient to confer dower, is very generally recog- 
nized in the United States. 1 



1 Holbrook v. Finney, 4 MaBS. 566 ; Coates v. Cheever, 4 Cowen, 460 ; Griggs v. 
Smith, 7 Halst. 22 ; Stanwood v. Dunning, 2 Shepl. 290; Randolph v. Dobs, 3 How. 
Miss. 205; Crafts v. Crafts, 2 McCord, 54; DouglaBS v. Dickson, 11 Rich. Law R. 
417 ; Arrant v. Robertson, 2 McMullan, 215; Tevis v. Steele, 4Monr. 339 ; McClure 
v. Harris, 12 B. Monr. 266 ; 4 Kent, 38, 39 ; 1 Waslib. Real Prop. 175 ; 1 Hilliard, 
Real Prop. 2d ed. 136. 



CHAPTEB XIII. 

DOWER IN ESTATES IN FEE SIMPLE, FEE TAIL, AND ESTATES 
ACQUIRED BY EXCHANGE. 



\ 1. Dower in estates in fee simple. 
2-6. In estates in fee tail. 
7-11. In estates acquired by exchange. 



\ 12-14. Effect of the determination of 
estates by natural limitation. 



Estates in fee simple. 

1. An absolute and unconditional estate in fee simple is the high- 
est interest in lands known to the law. It is hardly necessary to 
add that such an estate is subject' to dower. 

Estates in fee tail. 

2. A widow is also entitled to dower in estates in fee tail, whether 
general or special, except where the estate is so limited as to exclude 
her issue from the inheritance. This point has been already suf- 
ficiently explained elsewhere. 1 

3. In many of the United States the common law relating to en- 
tailments is entirely abolished, and in others it is very materially 
modified. Some of these changes will be here noted. In California, 2 
Florida, 3 Texas, 4 and Virginia, 5 the entailment of estates is expressly 
forbidden. In Alabama, 6 Georgia, 7 Kentucky, 8 North Carolina, 9 
Tennessee, 10 and Wisconsin, 11 the statute regulations convert estates 
tail into estates in fee simple in the hands of the first donee in tail. In 
Indiana the law is the same, except where a valid remainder is limited 

i Ante, ch. 11, \ 2. 2 Const. Art. XI. <S 16. 

3 Thompson's Dig. 2d Div. tit. 2, ch. 1, § 4. 4 Const. Art. I. \ 18. 

» Act of Va. 7th Oct. 1776 ; 4 Kent, 14. e Code, 1852, \ 1300. 

' Cobb's Laws, 1851, pp. 167, 282. 

s Rev. Stat. 1851-2, ch. 80, \ 8 ; 2 Rev. Stat, by Stanton, ch. 80, <S 8. 
9 Code, 1854, ch. 43, \ 1. i" Code Tenn. (1858,) Art. I. \ 2007. 

ii Rev. Stat. 1849, ch. 56, \ 3 ; Rev. Stat. 1858, ch. 83, \ 3. 
(268) 



CH. XIII.] ESTATES IN EEB SIMPLE, FEB TAIL, ETC. 269 

upon what is, in form, an estate tail, in which case the remainder is 
allowed to take effect. 1 The statute of Michigan is, in this respect, 
almost identical with that of Indiana. 2 And, in New York, if no valid 
remainder be limited on an estate tail, the tenant in tail takes a fee 
simple absolute. 3 Estates tail are prohibited in Mississippi, and they 
are declared to be estates in fee simple, except that lands may be 
limited to a succession of donees then living, not exceeding two, and 
to the heirs of the body of the remainder-man, and, in default 
thereof, to the heirs of the donor in fee simple.* In Iowa, all limita- 
tions which suspend the absolute power of alienation longer than 
lives in being, and twenty-one years, are void. 5 In Massachusetts, 6 
Maine, 7 New Hampshire, 8 and Maryland, 9 tenants in tail may convey 
in fee simple, and in the last-named State estates in fee tail general 
will descend like estates in fee simple. In Pennsylvania estates tail 
may be barred by deed expressing an intent so to do. 10 And in 
Rhode Island a tenant in tail may bar the estate by limiting a fee 
simple to his grantee or devisee, the deed in such case to be acknowl- 
edged before the Supreme Court or Court of Common Pleas. 11 

4. In the following States the first donee in tail takes an estate 
for life only. Arkansas: and the statute of this State gives the 
remainder in fee simple to the person to whom, at common law, the 
estate would first descend. 12 Connecticut: In this State the issue of 
the first donee in tail takes an absolute fee simple. 13 Illinois : The 
statute of this State is substantially like that of Arkansas. 14 Mis- 
souri : Estate for life in tenant in tail, and remainder in fee to his 



1 Rev. Stat. 1852, vol. i. 238. 

2 Rev. Stats 1846, ch. 62, g 3 ; 2 Comp. Laws, 1857, p. 818, ch. 85, gg 3, 4. 

« 1 N. Y. Rev. Stat. 722, g 3 ; see Van Rensselaer v. Kearney, 11 How. U. S. 
Rep. 297. 
* Rev. Code, 1857, ch. 36, g 1, Art. 3. 

5 Rev. Code, 1851, g 1191; Rev. of 1860, p. 388, g 2199. 

6 Rev. Stat. 1836, ch. 59, g 3 ; Gen. Stat. Mass. (I860,) ch. 89, g 4 ; see Wright 
v. Thayer, 1 Gray, 284 ; Holland v. Cruft, 3 Gray, 162. 

? Rev. Stat. 1857, ch. 73, g 4. 
s Comp. Stat. 1853, ch. 135, g 1. 

1 Marjl. Code, Art. 24, \ 24; Ibid. Art. 47, g 1; see Art. 93, g 298; Chelton v. 
Henderson, 9 Gill, 438. 
io Dunlop's Laws, p. 206; Purdon's Dig. 353. 
" Rev. Stat. 1857, ch. 154, gg 1, 2. 

" Rev. Stat. 1848, ch. 37, g 6 ; Dig. Stat. Ark. (1858,) ch. 37, g 5. 
is Comp. Stat. 1854, p. 680, g 4. 
" Rev. Stat. 1855, ch. 15, g 6; Stat. 111. (1858,) vol. ii. p. 960. 



270 THE LAW OF DOWER. [CH. XIII. 

children as tenants in common. 1 New Jersey 2 and Ohio : 3 In these 
States the first donee takes a life estate ; the fee simple vests in his 
heirs absolutely. In Vermont the first taker has an estate for life, 
with remainder in fee simple absolute to the person or persons to 
whom the estate would pass on his death.* 

Where, as in the States above enumerated, the estate of the first 
donee in tail is converted into a mere life estate, and is thus shorn 
of its inheritable quality in his hands, his widow, for reasons that 
will be hereafter stated, will not be dowable of the premises. 5 This 
point has been expressly determined in Missouri ; 6 and in Connec- 
ticut, where a tenant in tail general conveyed the lands in fee simple, 
taking back an estate for the term of his own life, covenanting not 
to commit waste, and after his death the issue in tail entered, it was 
held that after the conveyance in fee by the tenant in tail, no estate 
remained in him of which his widow could be endowed. 7 

5. In South Carolina the statute de donis was never in force, and 
in that State it is held that conditional estates in fee simple remain 
as at common law before the passage of that statute. 8 The crea- 
tion of a fee simple conditional, vests the estate in the tenant in 
fee. If he have issue, the condition of the grant is performed, and 
the estate becomes absolute in him, so as to enable him to convey it 
in fee simple. If he fail to have issue, his interest becomes a mere 
life estate, and, upon his death, the lands revert to the original do- 
nor. But the possibility of a reverter thus existing in the donor, is 
held not to be an estate ; neither is it the subject of inheritance nor 
devise. 9 

6. In Maryland a question was made as to whether a title of dower 
arose in the following case : A testator devised his real property as 



i Rev. Stat. 1845, ch. 32, \ 5. 2 Nixon's Dig. p. 196, \ 11. 

s Rev. Stat. 1854, ch. 42, \ 1 ; 1 Swan & Critch. 550. 
* Comp. Stat. 1850, ch. 62, \ 1 ; see Const. Verm, part 2, <S 36. 
6 Post, ch. 17. But in New Jersey, by express statute, the widow of the first 
donee in tail may have dower in the estate. Nixon's Dig. p. 196, \ 11. 
« Burris v. Page, 12 Mo. 358. 
1 Whiting v. Whiting, 4 Conn. 179. 

8 Stat. vol. iii. p. 341 ; Murrell v. Matthews, 2 Bay, 397 ; Carra. Porter, 1 McCord's 
Ch. R. 81 ; Henry v. Felder, 2 Ibid. 3"24, 326, 328, 337 ; Bedon v. Bedon, 2 Bailey, 
231; 4 Kent, 17. 

9 Ibid. Adams u. Chaplin, 1 Hill's S. C. Ch. R. 276. The reverter consequent 
upon the death of the issue without issue, during the lifetime of the husband, does 
not defeat dower. Paine's case, 8 Co. 34, b.; see post, ch. 14, \\ 16, 17. 



CH. XIII.] ESTATES IN FEE SIMPLE, FEE TAIL, ETC. 271 

follows: "Unto my wife, E. C, all my lands during her life, and 
after the death of my said wife, I give all the said lands to my son 
R. and my daughters Ann, A. E. and Agnes, to have and to hold 
the same during their single lives : And in case my said children 
here mentioned should marry, or my son R. should die without law- 
ful issue, then and in that case, it is my desire that my son W. have 
and enjoy the whole of my said lands, to him, his heirs and assigns 
forever." It was held that the son R. took an estate in fee tail ; 
and that, as the statute of Maryland makes such an estate a fee 
simple, his wife was entitled to dower therein. 1 

Estates acquired by exchange. 

7. The term "exchange," when employed in its technical sensej 
and with reference to the law of real property, implies a mutual grant 
of equal interests, the one in consideration of the other. It is not 
essential that the estates exchanged should be of equal value, hut it 
is requisite that they should be of equal interest, as a fee simple for 
a fee simple ; a lease for life for a lease for life, and the like. 2 With 
regard to the right of dower in estates thus acquired, the common 
law is somewhat peculiar. 

8. Where a valid exchange of lands is made, and the title is con- 
summated by entry, 3 the widow of either of the parties to the ex- 
change may, by the common law, exercise the right of election as 
to which estate she will be endowed of, whether that given, or 
that received in exchange by her husband; but she can not have 
dower in both, although the husband had seizin of both during the 
coverture. 4 

9. Upon an exchange of lands the law implies a special warranty 
of title ; and if an exchange be made between A. and B., and B. 
marry, and afterwards A. is evicted of the land taken in exchange, 
he may recover in value against B. the land given in exchange, and 
the wife of B. will thereby lose her dower, for, according to the old 
books, the recovery in value is paramount to the title of dower, by 



i Chew v. Chew, 1 Md. 163. » 2 Bl. Com. 323. 

8 Upon the subject of entry in such cases, see ante, ch. 12, \§ 15, 27. 

* Co. Litt. 31, b.; Perk. see. 319; Fitzh. N. B. 149, (N.); Butler & Baker's case, 
3 Leon. 271 ; Park, Dow. 261 ; 1 Washb. Real Prop. 158, \ 11 ; 1 Greenl. Cruise, 
163, I 12 ; 1 Hilliard, Beal Prop. 149, \ 8. 



272 THE LAW OP DOWER. [CH. XIII. 

relation to the time of the exchange, which was before the marriage. 1 
But if a man recover by way of recompense in value, against the 
husband, by a warranty aneestrel, the wife shall be endowed, be- 
cause the recovery there is simply by force of the warranty, and not 
by reason of any elder title to the land, and so the land is bound 
only from the time of the judgment. The warranty here is only a 
collateral charge, and not a specific lien upon the land, as in the 
case of exchange or partition. 2 

10. The doctrine of the common law with respect to exchanges of 
real property, is not universally adopted in the United States. The 
rule in a majority of the States is that this mode of dealing in lands 
stands upon the same footing as transfers in the usual form. Both 
parties are regarded as ordinary purchasers, and the right of dower 
of the wife of each attaches, as well upon the parcel conveyed as 
upon that received in exchange. This point was determined in New 
Hampshire, in a case where an agreement for the exchange of lands 
was executed by mutual conveyances in the ordinary form, and it was 
held that the wives of the respective parties might claim dower in 
both parcels. 3 In Maine it was held, upon the principle applicable 
to the partition of lands, that where two tenants in common divide 
their estate by executing mutual releases, the wife of one of them 
shall not be endowed of both parcels, her right of dower attaching 
only upon the share of the husband. 4 But if the division be made 
in unequal parts, one tenant paying the difference in value to the 
other, the transaction is then regarded in the light of an ordinary 
sale of lands, and the widow of the tenant receiving a release of the 
larger proportion may not only claim dower in that proportion, but 
also in the share released to the cotenant by her husband. 6 

11. In New York, 6 Wisconsin, 7 Arkansas, 8 Michigan, 9 Illinois, 10 

i 2 Roll. Vouch. (R. b.) pi. 4; Perk. sec. 309. 

2 Park, Dow. 153; Fitzh. N. B. 150, (D.) ; Gilb. Uses, 399. 

3 Cass v. Thompson, 1 N. H. 65. The court held, however, that mutual convey- 
ances, in the ordinary form, do not constitute an exchange proper ; that the word 
exchange is absolutely essential to that mode of conveyance. This term was omitted 
in both deeds in the case decided by the court. 

4 Mosher v. Mosher, 32 Maine, 412. 

6 Ibid. « 1 Rev. Stat. 740. 

' Rev. Stat. Wis. (1858,) p. 545, ch. 89, \ 2. 
s Dig. Ark. Stat. (1858,) p. 451, ch. 60, \ 3. 
» 2 Comp. Laws Mich. 841, ch. 89, \ 2. 
w Stat. 111. (1858,) vol. i. ch. 34, \ 16. 



CH. XIII.] ESTATES IN FEE SIMPLE, FEE TAIL, ETC. 273 

Minnesota, 1 Oregon, 2 and the District of Columbia, 3 the right of 
dower is limited, upon the exchange of lands, as at common law. 
And in Kentucky the same doctrine is applied in practice by the 
courts. 4 The statutes upon this subject usually require the widow 
to elect, within a specified time, of which parcel she will be endowed, 
and if she fail to make such election, she is to be deemed to have 
elected to take her dower in the lands received in exchange. In 
order, however, to make a case of exchange within the meaning of 
these statutes, the interests mutually transferred must be equal; 
otherwise the right of dower will attach as in ordinary cases of sale 
and conveyance. 5 

Estates determined by natural limitation. 

12. As a general rule, the determination of an estate which, in 
its nature, is subject to dower, by its regular and natural limitation, 
will not affect the claim to endowment. To such an estate dower is 
a necessary incident ; it is annexed thereto by implication of law, 
and forms a part thereof. In other words, the estate of the wife is 
regarded as a mere prolongation of the estate of the husband. 6 If, 
therefore, the husband be seized of an estate in fee simple, and die 
without heirs, his widow shall have her dower, notwithstanding the 
escheat arising by reason of such failure. 7 The same principle ap- 
plies to estates tail. Thus, in Paine's case, it was held by the court 
"that at the common law, if lands had been given to a woman and to 
the heirs of her body, and she had taken a husband and had issue, and 
the issue died, and the wife also, without issue, whereby the inherit- 
ance of the land did revert to the donor, in that case the estate of 
the wife is determined, and yet the husband shall be tenant by the 
curtesy, for that is tacitS implied in the gift." 8 It was also determined 

» Stat. Minn. Rev. 1858, p. 407, § 2. 

2 Stat, of Oregon, (1855,) p. 405, g 2. 

3 Rev. Code Dist. Col. (1857,) p. 200, \ 7. 

4 Stevens v. Smith, 4 ,1. J. Marsh. 64 ; Mahoney v. Young, 3 Dana, 588. 

5 Wilcox v. Randall, 7 Barb. 633 ; 1 Washb. R. P. 158, \ 11. 

« Park, Dow. 157; Tud. Ca8. 44; 1 Washb. R. P. 212, §31; Northcutt v. Whipp, 
12 B. Monr. 73; Lawrence v. Brown, 5 N. Y. (1 Seld.) 394; Fowler v. Griffin, 3 
Sand. S. C. 385. 

' Bracton, 297, pi. 2; Bro. Tenures, pi. 33; Park, Dow. 158; 4 Kent, 49. This 
principle has no application to cases of escheat at common law by reason of crime. 
The case of the determination of a rent in fee is considered, post, ch. 18. 

8 Paine's case, 8 Co. 34, b. 

VOL. L 18 



274 THE LAW OF DOWEK. [CH. XIII. 

that the same doctrine applied to estates tail since the statute de 
donis, the title of the husband to be tenant by the curtesy, and of 
the wife to be tenant in dower, not being restrained by that statute. 
The judgment of the court, as reported by Coke, is as follows : "And 
if tenant in tail takes a husband, and hath issue and dies, now the 
husband is tenant by the curtesy ; and although afterwards the 
issue dies without issue, so that the estate tail is determined, yet his 
estate shall continue, for it is not derived merely out of the estate 
of the wife, but is created by the law, by privilege and benefit of law 
tacite annexed to the gift." In conformity to the same principle, 
the continuance of the estate of the dowress is elsewhere designated 
by Lord Coke as " quodammodo a continuance of part of the estate 
tail." 1 Perkins states the point thus: "If a donee of land in tail 
general take a wife, and dies without issue, and the donor enters, the 
wife of the donee shall have dower ; and yet the estate tail which 
made her title is determined." 2 

13. So strict is the common law in the enforcement of this rule, 
that it will not permit the right of dower to be affected or impaired 
by any condition or qualification contained in the conveyance of the 
estate to the husband. The continuation of the estate of the hus- 
band in the widow is so far considered by the law a portion of the 
quantity of enjoyment designated by the terms of the limitation of 
the estate, that any attempt to limit or restrain the right of the wife 
is regarded as being repugnant to the grant. This point was dis- 
cussed in Sir Anthony Mildmay's case, 3 and it was there said by 
the court, that "if a man makes a gift in tail on condition that 
the donee shall not commit waste, or that his wife shall not be en- 
dowed, or that the husband of a woman, tenant in tail after issue, 
shall not be tenant by the curtesy, or that tenant in tail shall not 
suffer a common recovery, — these conditions are repugnant, and 
against law, because, by the gift in tail, he tacitly enables him to 
commit waste, that his wife shall be endowed, and to suffer a com- 
mon recovery. And therefore it is repugnant to restrain it by con- 



!Earl of Bedford's case, 7 Co. 67, 68, 9, a.; see Litt. sec. 53; Co. Litt. 31, b., 
241, a., and note 4; Perk. sec. 317; Fitzh. N. B. 149, G.; Bro. Dow. pi. 86; Park, 
Dow. 158, 159; 4 Kent, 49 ; 1 Washb. Real Prop. 212, § 31 ; 2 Crabb, Real Prop. 
166. This point is also decided in Smith's Appeal, 23 Pa. St. R. 9. 

2 Perk. sec. 317. As to rents in fee tail, see post, ch. 18, <S§ 1-8. 

8 Sir Anthony Mildmay's case, 6 Co. 41, a.; and see Dyer, 343, b.; The Earl of 
Arundel's case, Shep. Touch, by Preston, 128, 131 ; Co. Litt. 224, *. 



CH. XIII.] ESTATES IN FEE SIMPLE, FEE TAIL, ETC. 275 

dition, for that would be to give a power, and to restrain the same 
power in one and the same deed." 1 

In England this rule of the common law is now changed by stat- 
ute. The late dower act contains the following provision: "And 
be it further enacted, That a widow shall not be entitled to dower 
out of any land of her husband, when, in the deed by which such 
land was conveyed to him, or by any deed executed by him, it shall 
be declared that his widow shall not be entitled to dower out of such 
land." 2 

J 4. As a consequence of the prolongation of the estate for the 
benefit of the dowress, under the doctrine of the common law, it fol- 
lows that all charges or derivative interests created by the tenant in 
tail prior to the inception of the title of dower, although void as 
against the reversioner or remainder-man, will be revived as against 
the dowress in proportion to the part set off to her in dower. This 
is illustrated in a case put by Coke : " If tenant in tail make a lease 
for years, reserving 20«., and after take a wife and die without issue, 
now as to him in the reversion the lease is merely void ; but if he 
endow the wife of tenant in tail of the land, (as she may be though 
the estate tail be determined,) now is the lease as to the tenant in 
dower (who is in of the state of her husband) revived again as 
against her, for as to her the estate tail continueth ; for she shall be 
attendant for the third part of the rent services, and yet they were 
extinct by act in law." 3 

i Park, Dow. 82. 2 3 & 4 Will. IV. ch. 105, § 6. See Appendix. 

3 Co. Litt. 46, a.; Earl of Bedford's case, 7 Co. 67, 9, a.; 1 Roll. Abr. 842; Park, 
Dow. 162. 



CHAPTER XIV. 



DOWER IN DETERMINABLE ESTATES. 



\ 1. The maxim cessanle statu primitivo 
cessat derivativus. 

2. Dower in defeasible estates. 

3—5. In eBtates upon condition. 

6-8. In base and qualified fees. 

9-12. In estates determinable under 
power of appointment. 



g 13, 14. In estates determinable under 
collateral limitations. 

15-38. In estates determinable under 
conditional limitations, or by executory 
devise. 



1. Cessante statu primitivo cessat derivativus, is a maxim in the 
law, and upon this maxim is founded the rule that the dower estate 
of the wife can only be commensurate with the primitive estate from 
which it is derived. We have just seen that the determination of 
an estate in fee simple or fee tail, by its natural or regular limita- 
tion, does not defeat the right of dower. It has also been shown 
that this result is not attributable to any exception to the foregoing 
rule, as is sometimes supposed, but is in harmony with it. The dower 
estate of the widow, in such cases, exists by implication of law as a 
part of the estate embraced in the original limitation to the husband. 
The quantum of enjoyment designated in the grant is held not to be 
exhausted until after the death of the widow. So long as there are 
heirs — where the estate is limited in fee simple ; or issue, where it 
is limited in fee tail — the entire estate continues to exist. So long 
as there is a dowress, the estate has a partial continuation. 1 There 
are cases of limitation by way of shifting use, and executory devise, 
to which this doctrine is also supposed to apply, but in respect of 
which, differences of opinion exist, as will be explained hereafter. 2 
As regards ordinary determinable estates, however, the maxim above 
quoted, and the rule founded thereon, are of general, if not univer- 
sal application. Subject to the qualification above stated, the gen- 
eral doctrine is, that if the estate of the husband be, in its own na- 



i Park, Dow. 183-5. 
(2t6) 



2 Post, \ 15 et seq. 



CH. XIV.] DETERMINABLE ESTATES. 277 

ture, an estate of inheritance, the fact that it has a determinable 
quality attached to it will not prevent the inception of a title of 
dower ; but when that estate, by reason of its determinable quality, 
is avoided or defeated, the right of dower falls with it. 

Defeasible estates. 

2. Defeasible estates — having reference now to such estates as are 
acquired by a tortious entry, or other equivalent act of disseizin — 
are, as already shown, subject to dower. 1 But dower being an in- 
terest annexed to the defeasible estate, it follows that it is avoided 
upon the restoration of the seizin to the rightful owner under his 
prior title. 2 In these cases the seizin of the owner is not merely 
determined, but it is defeated, or, as the old books still more ex- 
pressively term it, is disaffirmed. The restoration of the original 
seizin is considered as not merely a giving back to the owner of that 
which had been unjustly taken from him, with all the prejudice of 
an intermediate ownership, but, in intendment of law, it is consid- 
ered as purging and abolishing the intermediate seizin, and all its 
consequences, and, for the purposes of title, negativing the existence 
of such seizin. The person having the right is not merely restored 
to his right, but he is placed in statu quo. 3 Therefore, if the owner 
of an estate be disseized, and the disseizor marry, and afterwards 
the disseizee enter upon, -Or recover against the disseizor, the title 
of dower in the wife of the disseizor is thereby defeated. 4 And if 
the disseizor die seized, and his heir actually endow the widow, and 
the disseizee afterwards recover the lands by judgment against the 
heir and dowress, the estate of the' dowress is at an end. 5 

Estates upon condition. 

3. Care must be exercised not to confound estates upon condition 
with estates created under conditional limitations. The former can 
only be defeated by entry for condition broken, 6 and, when this is 

i Ante, ch. 12, \\ 31, 32. 2 Gilb. Uses, 399. 

s See Litt. sec. 358 ; 1 Roll. Abr. 474. 

4 Countess of Berkshire v. Vanlore, Winch, 77. 

5 Park, Dow. 141, 142; Co. Litt. 420, b.; Dyer, 41, a.; Tud. Cas. 44 ; 2 Crabb, 
Real Prop. 1B5. 

« See ch. 12, \ 14. 



278 THE LAW OP DOWER. [CH. XIV. 

done, the old paramount title is reassumed. In the latter, upon the 
happening of the event or condition which is to terminate the estate, 
it ipso facto ceases, and, by the terms of the grant or devise, shifts 
to another person. 1 

4. An estate held upon condition, so long as it is not avoided by 
entry for forfeiture, is subject to dower f but when the estate is de- 
termined by such entry, the right of dower which depends upon it is 
also determined. Thus, if an estate be granted in fee or in tail upon 
condition to be performed by the grantee, and the grantor enter for 
breach of the condition ; or if the grant be upon condition to be per- 
formed by the grantor, and he duly perform the condition, and enter, 
the wife of the grantee is not entitled to dower. 3 And if a portion only 
of the estate of the husband be defeated by force of the condition, as 
where the condition is annexed to the freehold only, yet as the op- 
eration of that condition deprives the estate of that quality which 
renders it subject to dower, and converts it into an estate in remain- 
der or reversion, the title of dower is equally avoided — the former 
seizin being disaffirmed by entry for the breach — as where the whole 
estate is defeated. To this principle may be referred the case already 
put of a surrender upon condition, by the lessee for life to the re- 
versioner, by force of which the wife of the reversioner becomes 
dowable, but where, if the lessee enter for condition broken, the es- 
tate of dower is defeated. 4 

5. A case was recently determined, in New York, involving the 
application of this principle. A tenant for life executed a lease for 
the term of her own life, to the reversioner, upon condition that the 
rent should be paid according to the terms of the lease. The lessee 
failed to perform this condition, and the lessor thereupon entered for 
the breach. The reversioner having died during the lifetime of the 
tenant for life, it was held that the forfeiture of the lease and subse- 
quent re-entry for condition broken, operated to defeat his freehold 



1 4 Kent, 32, 33, note ; 1 Washb. Real Prop. 212, <S 32 ; 1 Hilliard, Real Prop. 
114, \ 24. As to dower in estates created by way of conditional limitation, or 
executory devise, see infra, \\ 15-38. 

2 Ch. 12, \ 14. 

"Park, Dow. 154; 1 Roll. Abr. 474; Perk. sees. 311, 312; Ley, 299, arg.; But- 
ler's note, 4, Co. Litt. 241, a.; 4 Kent, 49; 1 Washb. Real Prop. 208, \ 26; Bcards- 
lee v. Beardslee, 5 Barb. 324. 

* Ante, ch. 11, \ 14 ; Park, Dow. 154. 



CH. XIV.] DETERMINABLE ESTATES. 279 

estate ah initio, and consequently that his widow was not dowable 
of the lands. 1 

Base and qualified fees. 

6. A base fee, carved out of an estate tail, 2 or a qualified fee, as 
the Duchy of Cornwall, 3 will confer a right of dower as against all 
persons claiming those estates. 

It was for a long time the opinion of eminent lawyers, that under 
alienations by tenant in tail, not creating a discontinuance, nor op- 
erating as a bar, namely, by grant, bargain and sale, or other inno- 
cent conveyance, the alienee had a mere descendible freehold, simply 
determinable with the death of the tenant in tail. This opinion is 
supposed to have been founded on several passages of Littleton, in 
the chapter on Discontinuances, 4 where, speaking of such convey- 
ances in opposition to tortious alienations, which, as they can only 
be avoided by the action of the issue or remainder-man, are there- 
fore indefeasible till so avoided, he treats them as conveyances 
passing an estate determinable upon the death of the tenant in tail ; 
meaning nothing more, probably, than that the mere entry of the 
issue when their title accrued, without anything further, avoids them. 
In The Case of Fines, 6 (determined in the 44th of Elizabeth,) a cor- 
rect exposition was put upon the text of Littleton, and it was there 
said, that "his intent was not that the grantee had but an estate 
for life, and that his estate should be absolutely determined by the 
death of tenant in tail, but that it was not a discontinuance ; nor 
had the grantee any fixed or durable estate, but for the life of tenant 
in tail ; but that the issue after his death might at his pleasure de- 

1 Beardslee v. Beardslee, 5 Barb. 324; see, also, Moore v. Esty, 5 N. H. 479; 
ante, eh. 11, \ 14. Mr. Hilliard states the rule differently: "If the life estate cease 
for a time, though afterwards reinstated, the widow of the reversioner has dower 
on account of the temporary seizin. Thus, if lessee for life surrender to the rever- 
sioner on condition, and enter for condition broken, the widow of the latter shall be 
endowed." 1 Hilliard, Real Prop. 2d ed. 133, \ 43. This exhibition of the law does 
not appear to be supported by the authorities. In addition to the cases above re- 
ferred to, see authorities cited in notes to \\ 2, 3, and 4 of this chapter. 

* The Case of Fines, 3 Co. 84, b.; Seymor's case, 10 Co. 96, a.; Co. Litt. 241, a., 
n. 4; Jenk. 274, pi. 96; Machell v. Clarke, 2 Raym. 778; 1 Cruise, 162, <S 6; 1 
Jarman on Wills, 792 ; 4 Dane's Abr. 668 ; 1 Washb. Real Prop. 175, \ 7 ; Jackson 
v. Kip, 3 Halst. 241 ; see Whiting v. Whiting, 4 Conn. 179. 

s Jenk. 280, pi. 5 ; Park, Dow. 50. 

* Litt. sees. 598, 600, 606-608. 5 The Case of Fines, 3 Co. 84. 



280 THE LAW OF DOWER. [CH. XIV. 

termine it ; and if the grantee in such case should have hut an estate 
for life of tenant in tail, then the wife of such grantee should not he 
endowed; against which it was adjudged in 24 E. III. 28, h." 1 In 
Seymor's case 2 the nature of the estate of an alienee of tenant in 
tail was also fully considered, and hy the first resolution of the 
judges the wife was held dowahle of that estate. But, from some 
cause, the report of Lord Coke left the question in a very unsatisfac- 
tory condition, for the inference from the resolution that the bar- 
gainee had an estate of inheritance, is, in a great measure, negatived 
by the language of the report, which represents the court throughout 
as treating the estate, so far as it was dependent upon the bargain 
and sale, as a mere descendible freehold, determinable on the death 
of the tenant in tail, and expressly taking the distinction between a 
descendible freehold under the bargain and sale, and a base fee 
under the subsequent fine to the use of the bargainee. This incon- 
sistency occasioned subsequent judges to hesitate in admitting Sey- 
mor's case as an authority on the question of dower. Chief Justice 
Vaughan, in particular, in an anonymous case, 3 in which it was held 
that the bargainee of a tenant in tail had a mere descendible free- 
hold, asks, " How is it possible that such a tenant, who by the very 
book in the tenth report Seymor's case, hath but a descendible free- 
hold, how comes he to be so distinguished from other tenants that 
his wife shall be endowed ?" " I can not see how she can. There 
is no reason to difference it from other estates of freehold, determ- 
inable upon other acts and accidents, so long as Paul's steeple shall 
stand." The interpretation put upon the text of Littleton, in The 
Case of Fines, was again overlooked in Took v . Glascock, 4 in which 
it was held, that by the bargain and sale of a tenant in tail, nothing 
passes but an estate descendible for the life of the bargainor. But 
the law was finally settled in Machell v. Clarke, 5 where, after solemn 
argument, it was adjudged that the bargainee has a base or determ- 
inable fee, and that his estate continues until it is avoided by the 
entry of the issue in tail. The authority of Seymor's case was ad- 



1 See, also, Fitzh. Dow. 98. 

2 Seymor's case, 10 Co. 95 ; S. C. 1 Buletr. 163, by name of Heywood v. 'Smith. 
» Anon. S. Carter, 210. 

* Took v. Glascock, 1 Saund. 260. 

5 Machell v. Clarke, 2 Raym. 778; 2 Salk. 619; 7 Mod. 18 ; 11 Mod. 19; 1 Co- 
myn, 119. 



CH. XIV.] DETERMINABLE ESTATES. 281 

mitted as to the point of dower, and the»decision in Took v. Glascock 
was denied to be law. 1 

7. But the dower estate of the wife of a bargainee or releasee of 
a tenant in tail is defeated by the entry of the issue after the death 
of the tenant in tail ; the effect of such entry being to determine 
the estate of the husband, as shown in the preceding section. 2 Mar- 
gery Cally's case 3 has been criticised as being inconsistent with this 
doctrine, 4 but, it would seem, without just reason. 5 

8. The following decision was made in New Jersey : A testator, 
by his will, devised his property as follows : " I give to my son J. 
all my lands where I now dwell, unto him, his heirs and assigns for- 
ever ; though on this proviso : — if he shall again become compos 
mentis, and of sound mind and understanding, and capable of taking 
care of a family ; or should obtain lawful issue, who shall be compos 
mentis ; but for want of that, then my son A. shall have all the 
lands devised to my son J., to him the said A. and his heirs." J. 
remained non compos during his lifetime, and, on the testator's de- 
cease, A. took possession of the premises, and died seized in the 
lifetime of J. It was held that A. took such an inheritance under 
this devise as entitled his widow to dower in the premises. 6 

^Estates determinable under power of appointment. 

9. Among the methods invented by the early English conveyancers 
to so .transfer real property as to intercept the title of dower, and 
enable the purchaser to dispose of it at will free from that incum- 
brance, was the mode of conveying the estate to such uses as the 
purchaser should, by deed or will executed in a particular manner, 
direct or appoint, and, in default of appointment, to the purchaser, 
his heirs and assigns. This mode of limiting the estate proceeded 
upon the assumption that the exercise of the power of appointment 
defeated the estate limited in default of its execution. Questions, 
however, speedily arose with regard to the effect of <such a limitation. 
At one time it was doubted whether the power did not merge in the 
fee ; but it was finally settled that it did not. Then it was claimed 
that estates limited in default of the execution of such a power were 
vested, subject to a liability to be divested by an exercise of the 

1 Park, Dow. 50-3. 2 Seymor's case, 10 Co. 96, a., 98, a. 

s 24 E. III. 28, b. 4 Note by Serj. Williams, 1 Saund. 261, a. 

6 Park, Dow. 142, 143, and note. 6 Jackson v. Kip, 3 Halst. 241. 



282 THE LAW OP DOWER. [CH. XIV. 

power, and the law was evefttually so settled. This point being es- 
tablished, it next became a question whether, as a right of dower 
attached upon the estate in fee which became vested until the exer- 
cise of the power of appointment, a subsequent exercise of the power 
could drive it out, — a question upon which differences of opinion ex- 
isted for a considerable time. 1 In Cave v. Holford, 2 Mr. Justice 
Heath expressed an opinion that the power would enable the donee 
to- bar the claim of dower. In Cox v. Chamberlain, 3 Lord Alvanley 
spoke rather dubiously of the question. He said that by the execu- 
tion of the power, the estate in fee might be superseded, " though, 
perhaps, not to bar dower." Lord Eldon appears to have thought 
with Mr. Justice Heath, that the appointment drove out all inter- 
mediate estates, and that the dowress could not sustain her claim of 
dower upon the new estate in the appointee of the power. 4 Many 
eminent lawyers, and among them Mr. Eearne and Mr. Sugden, were 
of opinion that the right of dower was defeated with the estate on 
which it attached, by the execution of the power. 5 

10. This question, however, is now set at rest by the case of Ray 
v. Pung, 6 in which lands were conveyed to such uses as C. D. should, 
by deed, appoint, and in default of, and until such ap'pointment, to 
the use of C. D. in fee. C. D. afterwards, in execution of the power, 
by deed, duly made an appointment of the estate in favor of E. P. 
in fee. The appointment was made during the coverture of C. D., 
and it was held that his wife was thereby defeated of her dower in 
the lands. So in Kentucky, where A. made to B. a deed of gift, 
embracing both slaves and realty, in which deed was a special power 
in the nature of an appointment, which B. executed by his last will 
according to the terms of the power, it was held that his widow was 
not entitled to dower in the lands so disposed of. 7 

11. But if the husband die without executing the power, the right 
of dower becomes absolute. This point is well settled in England, 

1 Sugden's note, Gilb. Uses, p. 321 ; see note (2) Co. Litt. 216, a. 

2 Cave v. Holford, 3 Ves. Jr. 657. 

3 Cox v. Chamberlain, 4 Ves. Jr. 637. 

* See Maundrell v. Maundrell, 10 Ves. Jr. 263, 265-267. 

5 1 Fearne, Cont. Rem. 347, note ; 2 Sugden, Powers, 34 et seq.; and see Park, 
Dow. 186-190; 4 Kent, 51; see, also, Wilde v. Fort, 4 Taunt. 334. 

6 Ray v. Pung, 5 B. & Aid. 561 ; 7 Eng. C. L. 193 ; S. C. 5 Madd. 310. 

7 Thompson v. Vance, 1 Met. (Ky.) Rep. 670; S. C. 7 Amer. Law Reg. 222; see, 
also, Chinnubbee v. Nicks, 3 Port. (Ala.) R. 362, where this doetrine is discussed 
and approved. 



OH. XIV.] DETERMINABLE ESTATES. 283 

and has been decided in the United States. Thus, in South Caro- 
lina, in the case of Peay v. Peay, 1 A., for a consideration paid by B., 
conveyed to 0. a tract of land " in trust for the use of B., his heirs 
and assigns forever, and to permit the said B. to have and possess 
the same, and to enjoy the profits thereof, and in trust to convey the 
same to such person or persons as the said B. shall, by deed or will, 
or other -writing under his hand, direct and appoint," and it was held 
that B. took, under the statute of uses, at least a qualified or de- 
terminable fee in the land, and, never having exercised the power of 
appointment, that his widow was entitled to dower. And the dispo- 
sition of the estate must be referrible directly to the power in order 
to defeat dower. Thus, where a person, prior to his marriage, con- 
veyed certain land, in trust for such use, and such person as he should 
afterwards appoint by deed or will, and in default of, and until 
such appointment, to the use of himself and heirs, and afterwards, 
by his will, devised all his real estate to his children by a former 
wife, it was held that his widow was dowable of the land in question, 
the disposition by will being regarded as an ordinary devise, and not 
as an execution of the power. " The testator," the court remarked, 
" had an estate devisable in him, and power, also, to limit an use ; 
he had an election to pursue which of them he would, and when he 
devised the real estate itself, without any reference to his authority, 
or power, he declared his intent to devise an estate as owner of the 
land, by his will, and not to limit an use according to his authority. 
.... There being no execution of the power, the land passed by 
the will itself, and not by virtue of the execution of the power." 3 

12. A devise to the husband for life, expressly, with remainder 
to such persons as he shall by deed, or will, or otherwise, appoint, 
will not give him the absolute interest, although he may acquire it 
by the exercise of his power. 3 And if he should die before making 
an appointment to himself under the power, his widow would not be 
entitled to dower. 4 



1 Peay v. Peay, 2 Rich. Eq. 409 ; see, also, Hawley v. James, 5 Paige, 318, 455. 

2 Link v. Edmondson, 19 Misso. 487. 

3 1 Sugden on Pow. 119, pi. 6; see Barford v. Street, 16 Ves. Jr. 135. 

4 Thompson v. Vance, 1 Met. (Ky.) Rep. 670; see Collins v. Carlisle's Hoirs, 7B. 
Mon. 14; McGaughey v. Henry, 15 B. Mon. 383. 



284 THE LAW OF DOWER. [CH. XIV. 



Estates determinable under collateral limitations. 

13. Estates created by way of collateral limitation are subject to 
dower. The following is given by Jenkins as an instance of a limita- 
tion of this character: "So of a grant of rent or land to one and his 
heirs till the building of St. Paul's be finished." 1 It is well settled, 
however, that dower ceases with the event which terminates the 
estate. In all these cases the maxim, cessante statu primitivo eessat 
derivativus, applies. 2 "If this contingency happens," adds Jenkins 
to the above quotation, "dower shall cease." 

14. In some instances the determination of an estate of inherit- 
ance is the result of a collateral limitation implied in law, as in the 
case of a gift in tail with a reservation of rent to the donor and his 
heirs. 3 Here, upon the death of the donee in tail without issue, the 
right of dower in the rent of the wife of the donor ceases, for thereby 
the estate from which the rent is derived is determined. 4 And it 
seems that the operation of a collateral limitation, whether express 
or implied, will defeat dower, as well where it converts the estate of 
the husband into a mere life estate, as where it determines it alto- 
gether. As where the husband is tenant of a determinable fee de- 
rived from an estate tail special, and during the coverture the 
determinable fee becomes an estate pur auter vie, by the tenant in 
tail becoming tenant in tail after possibility of issue extinct. Mr. 
Preston has expressed some doubt upon this point, 5 but Mr. Park 
maintains the proposition with much confidence, and appears to be 
sustained by authority. 6 

Estates determinable under conditional limitations, or by executory 

devise! 1 

15. Whether the wife is dowable of an estate conferred upon the 
husband by way of conditional limitation, or subject to an executory 

i Jenk. Cent. 1, Ca. 6. 

2 3 Prest. Abst. 373; Butler's note, Co. Litt. 241, a. , « See ch. 18, \ 2. 

* The distinction between the right of dower of the wife of the donor in the rent, 
and of the wife of the donee in the land, is explained in ch. 18, \ 2 ei seq. 

6 3 Prest. Conv. 173. 

« Park, Dow. 165-7; Plow. 155; Hughes on Writs, 182. 

' As to the distinction between a conditional limitation and an estate upon condi- 
tion, see ante, \ 3. 



CH. XIV.] DETERMINABLE ESTATES. 285 

devise, after his estate has been divested by operation of the limita- 
tion or devise, is a vexed question, in respect of which eminent jurists 
and able conveyancers, both in England and the United States, have 
entertained conflicting opinions. We have seen that where an estate 
expires by force of its natural limitation, or, as it is sometimes ex- 
pressed, where it is spent, the right of dower is not disturbed. 1 Upon 
this point there is no doubt nor controversy. The difficulty arises 
where the estate? is so limited that upon the happening of a certain 
event it is to pass to a third person ; or where, upon the death of the 
devisee in fee without issue, the estate is devised over. In the first 
of these cases, if the event happen, the estate of the husband is 
thereby absolutely divested. In the other, if he die without issue, 
his estate is absolutely determined. In neither case does the estate 
expire by force of its natural limitation, but in virtue of the express 
limitations and conditions to which it was subject by the original 
grant or devise. Whether, after the estate has thus terminated, a 
right of dower continues to exist, is the question. 

16. The case of Sammes v. Payne, decided in the 29th 'of Eliza- 
beth, is the earliest reported case appearing to touch this question, 
and it is sometimes cited as an authority in support of the proposi- 
tion that curtesy, and by analogy, dower, shall continue after the 
determination of an estate by the operation of a conditional limita- 
tion or executory devise. But it is very questionable whether it can 
properly be regarded as an authority upon this point. The facts, 
as stated by Leonard and Anderson, 2 were as follows: One Jayne 
Payne, being seized in fee of the lands in question, conveyed the 
same to the use of herself for life, remainder to the use of Elizabeth 
Payne, her eldest daughter, in tail, upon condition that the said 
Elizabeth, or the heirs of her body, should, within one year after 
the death of the said Jayne Payne, or within one year next after 
Joan, the younger daughter of the said Jayne, should attain the age 
of eighteen years, pay to the said Joan, or the heirs of her body, 
thirty pounds. And if the said Elizabeth should die without issue 
before the time of payment aforesaid, or if the said Elizabeth, or the 
heirs of her body should fail in the payment of the sum aforesaid, 
then to the use of the said Joan Payne in tail. The mother died. 
Elizabeth took husband, Thomas Sammes ; had issue, and afterwards 



1 Ante, ch. 13, \\ 12-14, and \ 1 of present chapter. 

2 Sammes v. Payne, 1 Leon. 167; S. C. 1 And. 184. 



286 THE LAW OF DOWER. [CH. XIV. 

died without leaving issue, before the said Joan came to the age of 
eighteen years. The question was whether Thomas Sammes was 
entitled to be tenant by the curtesy. Against the claim to curtesy 
it was argued that the estate tail of Elizabeth was defeated by the 
non-payment of the thirty pounds, according to the limitation of the 
uses, and that therefore no right to curtesy existed. It will be 
observed that the argument was not placed upon the ground that the 
estate of the wife had determined by reason of failure of issue living 
at her death, for, as to estates tail, as we have seen, this is regarded as 
the expiration of the estate by its regular limitation, and in such case 
the right to curtesy or dower is confessedly preserved j 1 but the objec- 
tion urged was predicated upon the alleged breach of the condition of 
payment contained in the grant, upon the happening of which the 
estate was to shift and become vested in Joan, the younger daughter. 
The court, however, determined the question in favor of the husband. 
Leonard reports the judges as placing their decision upon the follow- 
ing ground : "As to the condition of payment of the said sum, the 
same is riot determined, for she died without issue before the day of 
payment, soil., before the second daughter came of the age of eighteen 
years, and as to that there is no condition broken ; and as to the 
point of dying without issue, the same is not a condition, but rather 
a limitation of the estate, and the same is no more than what the 
law saith, and the estate tail in Elizabeth is spent and determined 
by the dying without issue, and doth not cease, or is cut oif by any 
limitation." 

According to this language the court denied that the condition of 
payment was broken, as assumed by counsel, and upon which assump- 
tion alone it was insisted that curtesy was defeated. They held that 
the estate tail of Elizabeth expired by its regular limitation upon her 
death without issue living, before the time limited for payment. As 
her estate had thus terminated, and the limitation over to the younger 
daughter had consequently taken effect, there was nothing upon which 
the condition subsequently to be performed could operate. The con- 
clusion of the court, therefore, as above expressed, was simply that 
curtesy is not defeated by the determination of the estate of the 
wife by its natural limitation. 

In addition to the above reasoning, however, Leonard reports 
Anderson, J., as stating this further proposition : " If a feoffment 

1 Ante, oh. 13, gg 12-14. 



CH. XIV.] DETERMINABLE ESTATES. 287 

be made to the use of J. S. and his heirs until J. D. hath done such 
a thing, and then unto the use of J. D. and his heirs, the thing is 
done, and J. S. dieth, his wife shall be endowed." 1 But it is to be 
remarked that the case, as reported by Anderson himself, contains 
no such language; 2 and Goldsborough, who also reports the case, 
makes Anderson say that "if an estate be determined by limitation, 
this will not avoid a tenancy by the curtesy ; but otherwise it is if 
the estate be determined by a condition, for this relates to the de- 
feasance of the estate." 3 This mode of stating the point leaves the 
case of a conditional limitation untouched, and merely takes the 
broad ground of distinction between estates spent, and estates de- 
feated, for by the term "limitation," as here used, is obviously 
meant a simple limitation. 4 

17. In the report of the case by Coke, no notice is taken of the 
condition as to payment, nor of the limitation over in case of non- 
payment. He reports the case as being simply a gift of lands to the 
elder daughter in tail general, remainder to the younger daughter in 
tail general. That the elder daughter married, and had issue, which 
died. That afterwards the elder daughter died, whereby her estate 
tail was determined, and the lands passed to the younger daughter 
by the limitation over. And that by the judgment of the court the 
husband of the elder daughter was declared to be entitled to cur- 
tesy. 5 

18. Sammes v. Payne was followed by the case of Flavill v. Ven- 
trice, 6 decided in the 10th of James I., a short report of which is 
given, as follows: "If A. seized in fee of lands, covenants to stand 
seized thereof, to the use of himself and his heirs, till C. his middle 
son takes a wife, and after, to the use of C. and his heirs ; and after, 
A. dies, by which it descends to B. the elder son of A. who has a wife 
and dies, and after, C. takes a wife, it seems the wife of B. the elder 
son shall not be endowed of the said estate of her husband, because 
his estate is ended by an express limitation, and therefore, the 
estate of the wife being derived out of it, this can not continue longer 
than the original estate. P. 10 Ja. B., between Flavill and Ventrice, 
dubitatur upon a special verdict; for upon argument the court was 
divided, scil., Crawley and Vernon that she shall not be endowed, 



1 1 Leon. 168. 2 1 And. 184. 3 Goldsb. 81. 

* Park, Dow. 169. 5 Paine's case, 8 Co. 34, a. 

6 Flavill v. Ventrice, 2 Danv. Abr. 655; 9 Vin. Abr. 217, F. pi. 1. 



288 THE LAW OP DOWER. [CH. XIV. 

and Hutton and Heath e contra. Intratur Tr. 8 Car. Rot. 1343." 
The judges being equally divided, the point was not determined. 
The case, however, furnishes evidence that the law was considered- 
in an unsettled condition at the period when it arose. In Heyns v. 
Villars, 1 decided in 1658, the above case was cited at the bar by 
the name of Rochester and Venters, and it was added that it was a 
question to that day whether the feme should have dower. 2 

19. An interval of more than eighty years here occurs in which 
there is no reported case touching the question. The case next in 
order appears to be Sumner v. Partridge, determined July 25, 1740, 
which is briefly reported by Atkyns. 3 The point considered by the 
court arose upon the following case: "Devise to A. and her heirs, 
and if she die before her husband, he to have £20 a year for his life; 
remainder to go to her children. The wife died before the husband." 
It was held that the husband was not entitled to curtesy. 

With regard to this case it may be remarked, that upon the death 
of the wife, living the husband, the estate did not descend to the chil- 
dren, bat passed to them as purchasers by virtue of the original 
limitation ; a feature which, with respect to its influence upon the 
question under discussion, will be more particularly noticed here- 
after. 4 

20. The case of Goodenough v. Goodenough is referred to by Mr. 
Preston as supporting the claim of dower in estates determined by 
conditional limitation or executory devise. 5 This case is briefly 
noticed by Dickens. 6 The following statement of it, extracted from 
the Register's Book, 7 is taken from Mr. Jacob's Addenda to Roper 
on Husband and Wife. 8 

R. Serle devised certain estate's to his nephew, William Good- 
enough, and his heirs forever, subject to the limitation and condition 
after mentioned ; viz. that in case his said nephew should happen to 
die unmarried, and without issue of his body lawfully begotten, his 
will was, that the devise and devises thereinbefore made, should, in 
any or either of those cases, cease and be absolutely void ; and in 
that case he gave the estates to his nephew, Richard Jocelyn Good- 

1 Heyns v. Villars, 2 Sid. 64. 

2 Park, Dow. 172. The case is also cited by Twisden, J., 1 Vent. 377. 

3 Sumner v. Partridge, 2 Atk. 47. 

* Infra, § 29. 63 p res t. Abstr. 372. 

« Dick. Ch. R. toI. ii. 795. 

' 31 Jan. 1772; Reg. Lib. A. 1771, fo. 557. 

8 2 Roper, Husb. and Wife, by Jacob, 504, 505. 



CH. XIV.J DETERMINABLE ESTATES. 289 

enough. The testator died, leaving R. J. Goodenough his heir at 
law. William Goodenough afterwards married the plaintiff, having 
first, by articles previous to the marriage, agreed to settle lands of 
sufficient value to secure a jointure of £200 per annum to her for 
life, with remainder to the issue of the marriage. By his will, Wil- 
liam Goodenough gave his personal estate to the plaintiff, and ap- 
pointed her executrix, and recited that his brother Richard would 
have the estates left him after his (William's) death by R. Serle, and 
as he left them to his brother without any litigation, which there was 
the greatest room for, he hoped he would have the generosity to pay 
his wife her dower regularly, and without dispute. He died without 
issue, leaving his brother his heir at law. 

The bill prayed that the plaintiff's jointure might be made good 
out of the lands devised by Serle, or that she might be endowed out 
of those lands. It submitted, that the estate of William in those 
lands became absolute on his marriage ; or that, if the devise over 
was intended to take effect on his dying without issue, then that it 
was void, as being too remote, or that it reduced the estate of Wil- 
liam to an estate tail ; and therefore that the plaintiff was entitled 
to dower. The defendant, R. J. Goodenough, by his answer, insisted 
that there was no agreement on the marriage of the plaintiff for a set- 
tlement of the lands in question ; and submitted that she was bound, 
out of the personal estate of her husband, to purchase lands of the 
value of ,£200 per annum, upon the trusts of the marriage articles, 
under which he would become entitled on her death. He submitted, 
that the executory devise in the will of R. Serle was intended to 
take effect on the death of William, unmarried, or without issue; and 
that the testator having coupled those events in the same sentence, 
the latter must be understood to refer to the death of William, and 
therefore was not too remote. 

The decree declared, that according to the true construction of the 
will of William Goodenough, the plaintiff was entitled to have dower, 
only, out of the estates of which he died seized, and referred the case 
to a master to take an account of the rents and profits, and to set 
apart and allot sufficient of the said estates, as and for the dower of 
the plaintiff therein. 

21. But in Buckworth v. Thirkell, 1 decided in 1785, the subject 



i Buckworth v. Thirkell, 1 Coll. Juris. 332 ; 3 Bos. & Pul. 652, note ; Butler's Co. 
Lilt. 241, a., note. 

vol.. r. 19 



290 THE LAW OF DOWEK. [CH. XIV. 

underwent very full and elaborate discussion. The opinion was pro- 
nounced by Lord Mansfield, and the case is generally regarded as 
the leading one upon the questions involved. The following is a 
statement of the facts : — 

Joseph Sutton devised certain lands to trustees in fee, in trust to 
receive the rents and profits and apply them for the maintenance of 
Mary Barrs, granddaughter of the testator, until she should arrive 
at the age of twenty-one years, or be married ; and from and after 
her attaining such age, or being married, he gave and devised the 
lands to the said Mary Barrs, her heirs and assigns forever. But in 
case the said Mary Barrs should happen to die before she arrived at 
the age of twenty-one years, and without leaving issue of her body 
lawfully begotten, then, from and after the decease of the said Mary 
Barrs without issue as aforesaid, he gave and devised his said estates 
to his grandson, Walter Barrs, and to his assigns for his natural life, 
remainder over. Mary Barrs married Solomon Hansard, had a child 
by him, which died during her lifetime, and herself died under the 
age of twenty-one years, without leaving any issue. On the trial of 
an action of replevin, a special case was reserved for the opinion of 
the court upon the above facts, whether Solomon Hansard was en- 
titled to be tenant by the curtesy. The case was twice argued at 
the bar by desire of the court. The distinction made and relied 
upon in the argument, was between estates spent or expired, and 
estates defeated by way of condition. With respect to estates tail, 
it was argued that "before the statute de donis estates tail were 
conditional fees, but on the birth of a child, the condition was con- 
sidered as performed, so as to become an absolute estate to three 
purposes : 1st, that the donee in tail could alien ; 2dly, could forfeit ; 
3dly, it was descendible to the issue of a second marriage, and of 
course gave curtesy to the husband of a second marriage. The 
statute de donis took away the power of alienation, and the curtesy 
of the second husband, but left the right of the husband of the first 
marriage to be tenant by the curtesy as it stood before the statute, 
[viz. notwithstanding the failure of issue,] that is, as being the hus- 
band of a woman whose estate on condition was become absolute by 
birth of a son. This accounted for husbands being tenants by the 
curtesy of estates tail, but it explained the difference between estates 
tail and estates defeasible on condition, such as the present, and 
proved how inapplicable the case of an estate tail was to the present 



CH. XIV.] DETERMINABLE ESTATES. 291 

estate as to the right of the husband to curtesy." 1 Against this it 
was urged that the devise operated as a conditional limitation, and 
not merely to create an estate upon condition, for the defeasance, 
it was said, had no relation to the time of creating the estate, as 
in the case of a condition merely, the breach of which avoids all 
mesne incumbrances. 2 The judgment of the court is reported as 
follows : — 

"Lord Mansfield. Tenancy by the curtesy existed before the 
statute de donis, and the definition of it is, that the wife must be 
seized of an estate of inheritance, which, by possibility, her issue by 
the husband may inherit, and there must be issue born. Estates at 
that time were of two sorts, conditional, or absolute, and curtesy 
applies to both equally. I can not agree with the argument, that 
on performance of the condition, by birth of a child, the estate be- 
came absolute; it was so by a subtlety in odium of perpetuity, and 
for the special purpose of alienation, but for no other. It otherwise 
reverted to the donor on failure of the issue, according to the original 
restriction. At common law, the only modification of estates was 
by condition. The statute of uses introduced a greater latitude of 
qualification, but there arose a great dread of letting in perpetuities 
by means of the extensive operation of that statute; and in the time 
of Elizabeth and James, many cases were decided with a view to pre- 
vent that effect; with this view, it was allowed to bar contingent 
remainders before the person who was to take came into esse; others 
were held to be too remote in their creation. The cases proceeded 
in that view too far, and estates were too much loosened, and it be- 
came necessary to restrain them again; and in the time of the 
troubles eminent lawyers, who were 'then chamber counsel, devised 
methods which, on their return to Westminster Hall, they put in 
practice, such as interposing trustees to preserve contingent remain- 
ders. It is not of long date that the rules now in use have been 
established. I remember the introduction of the rule which pre- 
scribes the time in which executory devises must take effect,, to be a 
life or lives in being, and twenty-one years afterwards. 

"It is contended that this is a conditional limitation. It is not 
so, but a contingent limitation ; all the cases cited go upon the dis- 
tinction of their being conditions, and not limitations. During the 
life of the wife she continued seized of a fee simple, to which her 

1 1 Coll. Juris. 334. 2 3 Boa. & Pul. 653, note. 



292 THE LAW OF DOWER. [CH. XIV. 

issue might by possibility inherit. I am of opinion that the defendant 
is entitled to be tenant by the curtesy. 

" The rest of the court assenting, judgment for the defendant." 1 

22. The facts in Buckworth v. Thirkell, as reported, appear to 
make the limitation over a clear case of executory devise. Upon 
her marriage, Mary Barrs became seized of an estate in fee simple, 
for the devise yeas to her and her heirs from and after attaining 
twenty-one, or upon her marriage. Upon the happening of either 
event she was to take the fee. But upon her death within the age 
of twenty-one, and without issue living at her death, her estate was 
to determine and pass over to the grandson of the testator. Upon 
her marriage, therefore, she occupied, substantially, the position of 
a devisee in fee with a limitation over in the event of his death with- 
out issue living ; the only difference being that in the reported case, 
in order to divest the estate, it was necessary that the death of the 
devisee should occur within a. limited period. In point of principle, 
however, this would make no difference as regards the question in- 
volved. The case, therefore, is to be considered as expressly decid- 
ing that the determination of an estate by operation of an executory 
devise, does not defeat the right of the widow to dower, nor of the 
husband to be tenant by the curtesy. 

23. Very few cases in modern practice have provoked so much 
discussion, or been the subject of so much animadversion, as Buck- 
worth v. Thirkell. Lord Alvanley is reported to have remarked that 
"it occasioned some noise in the profession at the time it was de- 
cided." 2 It is referred to in terms of decided disapprobation by Mr. 
Butler in one of his notes to Coke on Littleton. The" following 
observations precede that writer's review of the case and of the 
grounds assigned by Lord Mansfield for the decision: "As to estates 
in fee simple conditional at the common law, and estates tail under 
the statute de donis, the wife was entitled to her dower, and the hus- 
band to his curtesy, out of them, after the failure of the issues in 
tail. But, it may be observed that though it is now difficult to avoid 
considering estates in fee simple conditional, in any other light than 
as estates originally granted to the donee, and to the heirs general, 
or to some particular heirs of his body; and the estate of the donor, 
as that of a reversion expectant on the failure of those heirs ; yet 
this restriction to particular heirs, and exclusion of others, is under- 

i 3 Bos. & Pul. 652, note. 2 In Doe v. Button, 3 Bos. & Pul. 653. 



CH. XIV.J DETERMINABLE ESTATES. • 293 

stood to be produced, not by any limitation of persons introduced 
into the grant, but by a condition supposed to be annexed to it, that 
if there were no such heirs, or being such, if they afterwards failed, 
and* the donee did. not alien the estate, it should be lawful for the 
donor and his heirs to enter. This entry, therefore, was not an 
entry upon the natural expiration of a previous estate, but for a 
condition broken ;' in which case, as in, all others where entry is 
made for breach" of a condition, the right of a wife to her dower, and 
the husband to his curtesy, if the general rule were adhered to, would 
be defeated. But, for reasons now rather to be guessed than demon- 
strated, this case was made an exception from the general rule. So 
with respect to the right of the wife of tenant in tail to her dower, 
and the husband to his curtesy, after the failure of the issues in tail ; 
the statute de donis introduced no new estate, but only preserved 
estates limited as conditional fees to the issues inheritable under 
them, by preventing the tenants of such conditional fees from alien- 
ating or disposing of them, and as they preserved the estates, so 
they preserved the incidents belonging to them, and among others, 
the right of the wife to her dower, and the husband to his curtesy." 1 
To these remarks the same writer adds his views with regard to 
what he terms limited fees. "As to limited fees, by which, in this 
place, are to be understood those fees which are qualified, not be- 
cause the estate of the grantor is limited — (such as those which are 
classed under the third distinction) — but those which, being created 
by a person seized in fee simple, are, by the original grant by which 
they are created, only to continue to a certain event ; as a grant to 
A. and his heirs, tenants of the manor of Dale, or to A. and his heirs 
while there shall be heirs of the body of B.: — or those fees which are 
originally devised or limited in words importing a fee simple or fee 
tail absolute and unconditional, but which, by subsequent words, are 
made determinable upon some particular event ; — as to fees of this 
description, it should seem by the case cited in the note to F. N. B. 
149, G., and the cases of Flavill v. Ventrice, Roll. Abr. 676, and 
Sammes v. Payne, 1 Leo. 167, 1 And. 184, 8 Rep. 34, Goulds. 81, 
that where the fee, in its original creation, is only to continue to a 
certain period, the wife is to hold her dower, and the husband his 
curtesy, after the expiration of the period to which the fee charged 
with the dower or curtesy, is to continue ; but that where the fee is 

1 Butl. Co. Litt. 241, a., note. 



294 THE LAW OF DOWER. [CU. XIV. 

originally devised in words importing a fee simple, or fee tail abso- 
lute and unconditional, .but by subsequent words is made determina- 
ble upon some particular event; there, if that particular event hap- 
pens, the wife's dower and the husband's curtesy cease with the estate 
to which it is annexed. Such appears to be the distinction estab- 
lished by the foregoing cases." 

24. The learned annotator then proceeds to notice the case of 
Buckworth v. Thirkell. "By a manuscript report o*f this case," he 
remarks, " the ground upon which the court appear to have formed 
their opinion on it, is an analogy they supposed it to bear to the 
cases of estates in fee simple conditional, and estates tail ; in both 
of which dower and curtesy continue after failure of the issues ; and 
in both of which the wife being seized of a fee, to which the issue 
might, by possibility, inherit, entitles the husband to curtesy. Some 
observations have been offered above, to show that the continuation 
of dower and curtesy in the cases of estates in fee simple conditional, 
was an exception to a general rule, (dower and curtesy, in all other 
cases of conditions, being defeated by the entry for the condition 
broken,) and that the same reasoning may be applied to the contin- 
uation of dower and curtesy out of an estate tail, after the failure 
of issue. It may therefore seem singular that the court, on this oc- 
casion, should prefer reasoning by way of analogy from the only 
admitted exception to the rule, to reasoning by analogy from the 
general rule itself. It is the more singular, as the general case of 
estates on condition approached nearer to the case then under the 
consideration of the court, than the particular case of estates in fee 
simple conditional, or estates tail, for the distinguishing feature of 
the devise which gave rise to the case before the court, (as of all de- 
vises of that description,) is, that after the whole fee is first devised, 
it is made defeasible by a subsequent clause. Now, neither an es- 
tate in fee simple conditional, nor an estate tail, has any such de- 
feasible quality or incident annexed to it, but this quality forms the 
very essence of all other estates upon condition. With respect to 
the application of the maxim that where the issue may, by possibility, 
inherit, the husband shall have his curtesy, (and so viae versd of 
dower ;) in every place in the books where that is mentioned, it is 
to introduce an inquiry whether the wife, being in the actual seizin 
of an estate, was in fact seized of an estate, the quality of which 
was such, that the issue of the husband might inherit it, but never 
with a view to show that the quantity of the estate was such that it 



CH. XIV.] DETERMINABLE ESTATES. 295 

might endure so long as to be inheritable by the issue. On the con- 
trary, when the wife's estate is evicted by title paramount, or by an 
entry for the breach of a condition, in both cases the issue might 
have inherited ; but the husband would be entitled to his curtesy in 
neither after the eviction or entry. Another difference between the 
case of an estate in fee simple made defeasible by a subsequent ex- 
ecutory limitation or devise, and that of an estate in fee simple con- 
ditional, or an estate tail, is, that an estate in fee simple, made de- 
feasible by an executory limitation or devise, can not, by any means 
whatever, be discharged by the first taker or devisee, from the opera- 
tion of the subsequent limitation or devise, but an estate in fee simple 
conditional may, immediately after the birth of a child, and an estate 
tail immediately after marriage, be destroyed, and a fee simple abso- 
lute acquired, by the husband and wife joining in a fine or common 
recovery. The case is the same with respect to the wife's right of 
dower. Besides, the quality we are speaking of is not suflScient of 
itself to entitle the husband to curtesy or the wife to dower ; it is 
only one of many incidents which the estate ought to have to give 
that title." 1 

25. Mr. Park also expresses marked dissent from the views of 
Lord Mansfield in Buckworth v. Thirkell. " The latter passage," 
he observes, referring to the opinion of that judge, "in which he is 
made to assign as a reason for his decision, that it was not a' con- 
ditional limitation, is not easily reconcilable with the case stated. 
The original limitation to Mary Barrs was expressly a limitation of 
the fee, and the subsequent estate being limited in derogation of that 
fee, and not upon the determination of a prior particular estate, was 
necessarily a conditional limitation. If it was not so, it is difficult 
to conjecture what Lord Mansfield understood by a conditional lim- 
itation. It might, perhaps, be thought that his lordship's observa- 
tions, as above stated, merely intended to take the distinction be- 
tween a limitation and a condition, properly so called. But the 
language as stated in the report of the case in Collect. Jurid. is still 
more irreconcilable with any correct view of the law, in application 
to the facts of the case stated. It is as follows : ' Now it is contended 
that this is a conditional limitation : It is no such thing. There is 
no condition in it. It is a contingent limitation. If it is a limitation 
it does not defeat the right of the husband to be tenant by the cur- 

» Butl. Co. Litt. 241, a., note. 



296 THE LAW OF DOWER. [CH. XIV. 

tesy, though the estate is spent.' 1 It is certainly inconsistent with 
all ideas entertained in modern practice, to consider an estate orig- 
inally limited in fee and abridged by a subsequent limitation over 
upon the happening of a particular event, in any such light as that 
implied by the observation that it was spent upon the happening of 
that event. Indeed, were not the observations of Lord Mansfield 
found in a case, which, as reported, was indisputably that of a con- 
ditional limitation, they would, without doubt, have been considered 
as establishing the general distinction, as to dower and curtesy, be- 
tween estates expiring by their natural and regular limitation, and 
estates abridged or defeated by some collateral term annexed to their 
creation. So far as the language of the judgment is to be relied on, 
it would seem to proceed upon the very distinction which Buckworth 
and Thirkell is daily cited to overturn." 2 

26. Some of the leading English text writers avoid expressing 
any opinion upon this question. Burton and Preston are among 
this number. 3 Atkinson, in discussing the point, employs this lan- 
guage : " Where the husband's estate is defeated by title paramount, 
as by entry for condition broken, by reason of a defective title 
in the grantor, or by shifting use, the right to the dower is also de- 
feated; but where the husband's estate is defeated by executory 
devise, it has been settled, rather anomalously, it has been thought, 
that the widow shall nevertheless be entitled to dower." 4 Mr. Jacob, 
the learned editor of Roper on Husband and Wife, upon an able re- 
view of the cases, and a thorough discussion of the question, inclines 
strongly against the right of dower where the estate is determined, 
either by a shifting use or an executory devise. 6 

27. Other distinguished writers upon the Law of Ileal Property, 
however, unhesitatingly support the doctrine of Buckworth v. Thir- 
kell. Among these may be named Jarman, Roper, and Bisset. Mr. 
Jarman thus states the law : " It is to be observed, too, that an im- 
mediate estate in fee, defeasible on the taking effect of an executory 
limitation, has all the incidents of an actual estate in fee simple in 
possession, such as curtesy, dower, &c; the devisee having the in- 
heritance in fee, subject, only, to a possibility." 6 

i 1 Coll. Jur. 336. a Park, Dow. 177-179 ; see, also, p. 185. 

» Burton, Real Prop. § 356; 3 Prest. Abstr. 373. 

1 1 Atkinson, Conv. 258. 5 App. No. II., 2 Roper on Husb. and Wife, 502. 

• 1 Jarman on Wills, 792 ; 1 Roper, Husb. and Wife, 38-43, 377 ; Bisset, Est. for 
Life, 82-7, are to the same effect; see, also, 2 Crabb, Real Prop. 167. 



CH. XIV.] DETERMINABLE ESTATES. 297 

28. The case of Moody v. King, 1 decided since the greater part 
of the foregoing discussion occurred, is* directly in point, and appears 
to fully support the judgment of Lord Mansfield upon this much 
mooted question. In that case the father of W. F. devised to him 
and his heirs forever, certain real estate, subject to the payment of 
an annuity ; and if the said W. F. should have no issue, the estate, 
on his decease, was to become the property of the heir at law, sub- 
ject to such legacies as W. F. might leave by will to any of the 
younger branches of the family. It was decided that under this 
devise, W. F. took an estate in fee, with an executory devise over, 
in the event (which happened) of his dying without issue, to the per- 
son who should then be the testator's heir at law. 2 It then became 
a question whether the widow of W. F. was entitled to dower, and a 
bill having been filed by her for that purpose, a case was stated for 
the opinion of the judges of the Common Pleas, who certified in her 
favor. Buckworth v. Thirkell, and Goodenough v. Goodenough, 3 
were the authorities chiefly relied on for the judgment of the court. 
The court were also of opinion that from the nature of the limitation 
the case came within the rule stated by Littleton, 4 according to which 
the right of dower exists where the husband's estate is such that the 
issue the wife may have by him may take by descent. 

29. In the more recent case of Barker v. Barker, 5 the question 
again came up for consideration. The Vice-Chancellor, by whom 
it was determined, went into a review 'of the cases of Sumner 
v. Partridge, 6 Buckworth v. Thirkell, and Moody v. King, and en- 
deavored to reconcile the first of these cases with the last two upon 
the distinction that in the first case the issue of the wife took the 
estate by force of the gift, as purchasers, and not by descent from 
her, while in the two other cases the issue of the wife, in the one 
case, and of the husband, in the other, would take by descent as 
heirs at law, and not as purchasers, under the limitation ; and upon 
this distinction he denied curtesy to the husband in the case before 
him. The case was this : Devise to A. and her heirs ; but if she 
died leaving issue, then to such issue and their heirs. A.. died leaving 
issue, and a husband. The husband claimed curtesy. "It was 



i Moody v. King, 2 Bing. 447; 9 Eng C. L. 475. 

> See Doe, dera. King v. Frost, 3 Barn. & Aid. 546; 5 Eng. C. L. 373 

» Supra, U 20, 21. * Sec. 53. 

6 Barker v. Barker, 2 Sim. 249; 2 Cond. Eng. Ch. R. 406. « Supra, \ 19. 



298 THE LAW OF DOWER. [CH. XIV. 

said," observed the Vice-Chancellor, " that this case was decided by 
Sumner v. Partridge, where there was a devise to A. and her heirs, 
and if she died before her husband, he was to have ,£20 a year for 
life, remainder to go to her children. A. died before the husband ; 
but the court held that he was not tenant by the curtesy. In op- 
position to that case, two cases were cited. The first was Buckworth 
v. Thirkell, where an estate was devised to trustees in trust for Mary 
Barrs, till she attained twenty-one, or married, and then to the use 
of her and her heirs, with a devise oyer in case she died under the 
age of twenty-one, and without leaving issue. The events were that 
she married, and had a child; the child died, and then the mother 
died under twenty-one ; and the question was, whether the husband 
was entitled to be tenant by the curtesy, which entirely depended 
upon whether she had such an estate, as, by possibility, her issue 
might inherit. The case was twice argued, and Lord Mansfield says 
that, during the life of the wife, she continued seized of a fee simple 
to which her issue might, by possibility, inherit ; and had she attained 
twenty-one, her vested estate would have descended on her issue. 
The consequence was, that her husband was held to be entitled to be 
tenant by the curtesy. The second case was Moody v. King, where 
there was a devise to W. Frost and his heirs, but if he should have 
no issue, the estate devised was, on his decease, to become the prop- 
erty of the heir at law. Now it is manifest that W. Frost had an 
estate that might have descended on his issue, and that, on his dying 
without issue, that estate determined. But it was, nevertheless, held 
that his widow was dowable. But these two cases are distinguishable 
from Sumner v. Partridge, and from the one now under consider- 
ation. For, in Sumner v. Partridge, and the case now before me, 
the children take by force of the gift ; in the two other cases, the 
devise over was to other persons. It is clear, therefore, that the 
estate which the wife had, is determined by her dying leaving issue, 
by which the children take as purchasers, by force of the gift. There- 
fore the wife had not such an estate as could descend to her children, 
they taking as purchasers. The consequence is that the husband is 
not entitled to be tenant by the curtesy." 1 

30. In a recent case Vice-Chancellor Stuart applied the doctrine 
of Moody v. King to an equitable determinable estate. A testatrix 

1 The opinion of the Vice-Chancellor in this case is referred to by Mr. Bisset in 
terms of high commendation. Bisset, Est. far Life, 85 ; 42 Law Lib. 



CH. XIV.] DETERMINABLE ESTATES. 299 

devised to trustees certain freehold premises, in trust to receive the 
rents, and after paying thereout all proper outgoings, and applying 
therefrom any moneys that they thought fit, to the maintenance of 
F. S., to let the residue accumulate until F. S. should attain twenty- 
one, and then to pay such accumulations to him ; but if he should 
die under age without leaving issue living at his decease, then such 
accumulations were to be applied for the benefit of the person to 
whom, and in the like manner and form, as the premises were limited 
in the like event; and when F. S. should attain twenty-one, then the 
trustees were to stand seized of the premises in trust for him in fee; 
but if he should not leave any issue living at his decease, then the 
trustees were to stand seized of the premises in trust for A. S. in 
fee ; and if A. S. should not leave any issue living at his decease, 
then the premises were devised over. F. S. attained twenty-one, 
and died without ever having had issue. It was held, on the con- 
struction of the will, that an equitable estate in fee in the premises 
vested in F. S. on his attaining twenty-one, subject to be divested in 
the event of his dying without issue, which event having happened, 
the limitation over in favor of A. S. took effect ; but that the widow 
of F. S. was nevertheless entitled to dower under the provisions of 
3 and 4 Will. IV. chapter 105. "The question in this case," said 
the Vice-Chancellor, " as to the widow's right to dower, must depend 
upon the true construction of the act of Parliament, the 3 and 4 
Will. IV. c. 105. The estate out of which the defendant Ann Eliza- 
beth Spencer claimed to be entitled to dower, was an equitable one, 
in respect of which, consequently, no such claim could exist at com- 
mon law, and she would not be entitled to any dower but for the late 
act of Parliament which said 'that where the husband should die 
beneficially entitled to any land, for an interest that should be an 
estate of inheritance in possession, then his widow should be entitled 
to dower.' 1 The question was whether the husband of this lady died 
'beneficially entitled' to any lands, and if the interest which he had 
was an estate of inheritance in possession. The husband was tenant 
in fee simple, subject to an executory devise over in case he died 
without leaving a child or issue living at the time of his death. It 
seemed to him, upon a strict and liberal interpretation of the lan- 
guage of the will, that if he died seized of anything, he must have 
died seized of an estate of inheritance, for he certainly did not die 

• 1 See Appendix. 



300 THE LAW OF DOWER. [CH. XIV. 

seized of a life estate. The estate which he had was an estate of 
inheritance; but although of inheritance, it was defeasible in this 
way — that in case he left no child or issue living at his death, then 
the estate was to go over to the person entitled to it. This inter- 
pretation of the language of the will seemed to him quite conform- 
able to the common law doctrine, and it was an interpretation which 
reconciled the right given to the widow to have her dower out of the 
equitable estate, so as to make it analogous to the right which she 
would have had if it had been a legal estate. The language of Lit- 
tleton in the 53 section, as to a legal estate, was very clear, and the 
interpretation of it in the case of Moody v. King was strict and 
proper. Littleton said 'that in every case where a woman taketh a 
husband seized of such an estate of tenements, &c. so that by possi- 
bility it may happen that if the wife have any issue by her husband, 
and that the same issue may by possibility inherit the same tene- 
ments of such estate as the husband hath, as heir to her husband of 
such tenements, she would have her dower, and otherwise not.' It 
was quite plain that in this case the husband was so seized that he 
might have had issue who would have inherited the land in such a 
manner as to have had the same estate as the husband ; that was, an 
estate of inheritance. But the question did not rest upon the inter- 
pretation of the language of Littleton as applied to the case of a fee 
simple in the husband, with an executory devise over in case he left 
no child living at his death; for it was determined in the ease of 
Moody v. King in the Court of Common Pleas — and that decision 
was adopted by this court — that in a case of this kind, though there 
be an executory devise over, yet the wife was dowable ; and upon 
the same principle it seemed impossible properly to adopt any other 
interpretation. It could not be necessary to hold that the estate of 
which the husband died seized was transmissible to his heir in order 
to entitle the wife to dower ; because it was certain and undoubted 
law, that if there be a tenant in tail with a remainder over in fee, 
although the tenant in tail should die without leaving any issue, so 
that the estate in remainder in fee took effect, the wife was dowable 
as against the remainder- man; and in principle it seemed impossible 
to say that an estate of which the tenant in tail was seized at his 
death for an estate tail, could be, in any respect, different from an 
estate given to a tenant in fee simple who died seized of that estate, 
but because he died without leaving a child, an executory devise 
over took effect. The principle seemed the same in both cases, and 



CH. XIV.] DETERMINABLE ESTATES. 301 

therefore he felt compelled to hold, upon the true construction of the 
statute, that the widow of this tenant in fee simple was, notwithstand- 
ing that the executory devise over took effect, entitled to dower as 
against the executory devisee." 1 Upon appeal to the Lord Chan- 
cellor, the decree of the Vice-Chancellor was affirmed. 2 

31. In the United States, as in England, the discussion of this 
subject has not resulted in an entire unanimity of opinion. Chan- 
cellor Kent maintains that "the ablest writers on property law are 
evidently against the authority of the case of Buckworth v. Thhkell, 
and against the right of the dowress, when the fee of the husband is 
determined by executory devise or shifting use." 3 Mr. Hilliard, 
while appearing to recognize the authority of that case, neverthe- 
less adopts, substantially, the distinction insisted upon by Mr. But- 
ler. 4 But Mr. Washburn, after reviewing the authorities, concludes 
that the tendency of the modern cases, both English and American, 
is to support the right to dower out of estates which have been de- 
termined by executory limitations. 5 And it would seem that the 
adjudged cases are in harmony with this proposition. 

32. The English cases have already been referred to. The Amer- 
ican cases will now be noticed. The point was considered by Chief 
Justice Gibson in Evans v. Evans. 6 In that case a testator had de- 
vised lands to two sons, G. and 0., their heirs and assigns, but if 
either should die without having lawful issue living at his death, his 
estate was to vest in the surviving brothers and sisters. One of these 
sons died without issue, living the other son, and the question was 
made whether his widow was entitled to dower. An affirmative de- 
cision was given. Chief Justice Gibson, who discussed the subject 
at length, dissented from the distinction taken by Mr. Butler. 7 "I 
have a deferential respect for the opinion of Mr. Butler," he re- 
marked, "who was, perhaps, the best conveyancer of his day, but I 
can not apprehend the reasons of his distinction in the note to Co. 
Litt. 241, a., between a fee limited to continue to a particular period 
at its creation, which curtesy or dower may survive, and the devise 



1 Smith v. Spencer, V. C. Stuart's Court, July, 1856, 2 Jurist, n. s. 778. A brief 
note of tlie case is also contained in 19 Law Reporter, 515. 

2 Smith v. Spencer, 6 De Gex, Macnaghten & Gordon's Rep. 631. Upon the 
appeal, however, no question appears to have been made with respect to dower. 

' 4 Kent, 50. 

* 1 Hilliard, Real Prop. 114, \\ 23, 24. 6 1 Washb. Real Prop. 216. 

• Evans v. Evans, 9 Barr, 190. * Ante, $ 23. 



302 THE LAW OF DOWER. [CH. XIV. 

of a fee simple or a fee tail, absolute or conditional, which, by sub- 
sequent words, is made determinable upon some particular event, at 
the happening of which dower or curtesy will cease." "How to 
reconcile to any system of reason, technical, or natural, the exist- 
ence of a derivative estate, after the extinction of that from which it 
Was derived, was for him to show, and he has not done it. The case 
of a tenant in tail, says Mr. Preston, 1 ' is an exception arising from 
an equitable construction of the statute de donis, and the cases of 
dower of estates determined by executory devise and springing use, 
owe their existence to the circumstance that these limitations are not 
governed by common law principles.' 2 The mounting of a fee upon 
a fee by executory devise is a proof of that." "Before the statute 
of wills there was no executory devise, and before the statute of uses 
there were no springing uses." "It was to the benign temper of the 
judges who moulded the limitations of the estates introduced by them, 
whether original or derivative, so as to relax the severer principles 
of the common law, and among other things, to preserve curtesy and 
dower from being barred by a determination of the original estate, 
which could not be prevented." 

33. A similar case was determined in Kentucky. A., the testator, 
devised a portion of his real estate to B., his wife, for life, and after 
her death the same property, together with certain other lands, to 
C, his son, in fee. But he directed that in case his son died in the 
lifetime of B., or subsequently to her death, without leaving issue, 
then the estate should go to the sisters of the testator and to the 
brothers of B. The son died without issue, in the lifetime of B. As 
to the lands devised to him immediately in fee his widow was allowed 
dower, upon the ground that her issue by him, had there been 
any, would have taken the estate by descent; but as to the lands in 
which the widow of the testator had a life estate no dower was allowed, 
the life estate not having terminated during the coverture. 3 

34. In Milledge v. Lamar, 4 decided in South Carolina as early as 

i 3 Prest. Abstr. 373. 

2 The Chief Justice does not complete the quotation. The following forms the 
concluding portion of the passage : "And when the limitation over was allowed to 
be valid against the former donee, it was on the terms that the limitation over should 
not impeach the title of dower of the wife of that donee." To this Mr. Park re- 
sponds: "The writer has not hitherto been so fortunate as to meet with the passages 
in the books from which this proposition is collected." Park, Dow. 183. 

3 Northcutt v. Whipp, 12 B. Monr. 65. 

* Milledge v. Lamar, 4 Desauss. 617, 637. 



CH. XIV.] DETERMINABLE ESTATES. 303 

1817, the same question -was adjudicated. In that case lands were 
given to Thomas Lamar and his heirs "without any condition, except 
that should the said Thomas die without any heirs of his body begot- 
ten, then, and in that case, the whole of the then remaining prop- 
erty should be equally divided among the children of his brothers." 
Thomas Lamar died without heirs of his body, but leaving a widow, 
who instituted proceedings for dower. Her claim was resisted upon 
the ground, mainly, that the estate of the husband was a fee simple 
conditional, of which, as it was contended, a wife is not dowable. 
But the court thought otherwise, Desaussure, Chancellor, delivering 
the opinion: "To the claim of dower," he observed, "it was objected 
that Thomas had not such an inheritable interest in the lands as 
entitled his widow to dower. But I am of opinion he had. The 
limitation is to him and his heirs ; but if he died without an heir of 
his body begotten, then over to his brother's children. If he had 
had an heir of his body, his children would have inherited. Now 
the text of Littleton is express, that where a woman taketh a hus- 
band seized of such an estate in tenements, &c, so that any issue 
she might have by him may, by possibility, inherit the said tenements 
of such an estate as the husband hath, she shall have dower. See 
Litt. § 53. As, then, the issue Mrs. Lamar might have had by the 
said Thomas might have inherited, she is entitled to dower. The 
widow of a tenant in tail, it was conceded, would be entitled to dower. 
And so, in my judgment, is the widow of a tenant in fee conditional 
at common law." Neither the court nor the counsel engaged ap- 
pear to have referred to Buckworth v. Thirkell, nor to any of the 
cases in which the question had been considered. The court seem 
to have relied, for the correctness of their conclusion, solely upon 
the text of Littleton, and the result, which, in their judgment, was 
fairly deducible therefrom. The decree rendered was afterwards 
unanimously affirmed in the Court of Appeals. 1 

35. The case of Adams v. Beekman, 2 decided by Chancellor Wal- 
worth, in some of its features bears a strong resemblance to Barker 
v. Barker. 3 William Adams, by his will, devised the use of'his farm 
to his son, the husband of the complainant, and to his nephew, for 
the term of three years. He directed his executors, at the expira- 
tion of that time, and as soon thereafter as could conveniently be 
done, to sell the farm, and divide the avails among his five children. 

i Page 645. " Adams v. Beekman, 1 Paige, 631. s Supra, \ 29. 



304 THE LAW OF DOWER. [CH. XIV. 

By a subsequent clause in the will it was provided that if any of his 
children died before the testator, leaving no children, the share of 
the child so dying should go to the survivors ; and also, in case any 
of them should die after his (the testator's) decease, leaving no chil- 
dren, and not having disposed of his or her share of the estate, the 
same should likewise go to the survivors ; but in case any of the tes- 
tator's children died, leaving children, then such children were to 
take the share of their parent in the same manner as such parent, if 
living, would have taken the same. The son died within the three 
years, leaving children, and the complainant, his widow. It was held 
that she was not entitled to dower. "By the death of the son during 
the term," said the chancellor, "and before the executors were author- 
ized to sell the farm and divide the proceeds, his interest was divested, 
and the executory limitation over to his children took effect. They 
are entitled to the share of the proceeds which would have belonged 
to him, if living. They do not take as heirs of their father, but as 
contingent legatees under the will. Their mother is not entitled to 
any part thereof, either as dower or under the statute of distribu- 
tions." 

In a later case the Supreme Court of New York refused to adopt 
what appears to be the prevailing doctrine of the decided cases, and 
dissented from the views expressed by Lord Mansfield in Buckworth 
v. Thirkell. A testator, by his will, which took effect prior to the 
Revised Statutes, devised as follows : "I give and devise to my two 
sons, Moses and Abraham, the farm I live upon, to have and to hold 
to them, their heirs and assigns forever, they supporting their mother 
thereon as above directed, and paying just debts and funeral ex- 
penses, to be divided as equal as may be, share and share alike. If 
either Moses or Abraham should die, and leave no lawful issue, then 
their portion or share of the land shall be equally divided between 
my son William, and the survivor of them." Moses died in 1850, 
leaving one child, and Abraham died in 1857, leaving a widow, but 
no issue. It was held that the limitation over to William was good 
as an executory devise; and that he was entitled to an estate in fee 
in the one-half of the land devised to Abraham exonerated from the 
dower of the widow of the latter. Upon this point the court re- 
marked as follows : " The widow takes her estate through the hus- 
band, but not from him, like one who inherits, for he can do no act 
which will divest her right. And when the estate of the. husband is 
determined by the happening of an event which defeats its further 



CH. XIV.J DETERMINABLE ESTATES. 305 

continuance, the estate in dower must be determined with. it. It is 
a part of the same estate of freehold and inheritance of which the 
husband was seized, and to the extent of it, is so much abstracted 
from what would otherwise descend to the heirs at law. Abraham 
Weller, by the express words of the will, took an estate in fee, but 
by subsequent words, which I think operative and effectual, it. was 
made determinable upon his dying without issue at the time of his 
death. When that event happened, the wife's right to dower ceased 
with the estate out of which it could only proceed. This conclusion 
conflicts with Lord Mansfield's judgment in Buckworth v. Thirkell, 
(3 B. & P. 652.) It is the rule, however, given by Mr. Cruise in his 
treatise on the Law of Real Property, (tit. 6, Dower, ch. 3, § 33,) 
and is the rule maintained by Mr. Park with singular ability in his 
work on the Law of Dower, page 174." 1 

36. There seems to be a marked distinction between a case where, 
by the terms of the limitation, the husband takes a fee simple estate, 
which, if he have issue living at his death, will descend to such issue, 
and which is limited over only in the event of his death without issue, 
and other cases of conditional limitation. Such a case is closely 
assimilated, in principle, to the natural determination of the estate 
for want of heirs generally, and there would seem to be no good 
reason why the husband's estate should not be so prolonged as to 
give the right of dower in the one case as well as in the other, par- 
ticularly as it is allowed to estates tail under similar circumstances, 
and also to conditional fees at common law. There seems to be an 
inconsistency in denying to the higher estate a right or interest 
which is annexed to the lesser. 2 Where the estate is defeasible by 
an event which has no relation to the death of the husband, but 
which may happen during the coverture, or at a period subsequent 
to his death, and which, therefore, might divest him of the estate 
during his lifetime, or deprive his issue of it after his death, it is 
manifest that the same reason for recognizing the claim of the widow 
does not exist. Indeed, to hold the wife dowable of such an estate 
after it was determined, would seem quite repugnant to principle. 
The infirmity in the estate of the" husband exists at its inception. 
The issue take it subject thereto. Their estate, as well as that of 
the widow, is derived through the grant or devise to him, and is a 

• Weller v. Weller, 28 Barb. 588. 

J See observations of Vice-Chancellor Stuart, cited ante, ? 30. 

VOL. I. 20 



306 THE LAW OF DOWER. [CH. XIV. 

continuation of his estate; and if the estate of the heirs be defeated — 
as it clearly would be — by the happening of the event which deter- 
mines that of the husband — how, upon principle, is the interest of the 
widow to be exempted from the same consequence? Indeed, it may 
be fairly inferred, from the remarks of Lord Mansfield in Buckworth 
v. Thirkell, that he was disposed to distinguish between these two 
classes of cases. 1 The principle settled where the husband possesses 
a power of appointment, and has determined his estate by the exer- 
cise of the power, would seem to accord with this view. 2 "An estate 
liable to be determined by a springing or shifting use, is not, in sub- 
stance, distinguishable from an estate liable to be determined by the 
exercise of a power of appointment ; the effect is the same, whether 
the new use is to arise on the execution of the power, or on any other 
uncertain event taking place. In either case it arises from the orig- 
inal instrument, taking effect, in point of time, from the period when 
the event happens ; and since it has been settled that the right to 
dower is defeated by the appointment, it seems to follow that the 
same rule must prevail with respect to estates determined by shifting 
or springing uses." 3 

37. In all the reported cases in which dower or curtesy has been 
allowed upon estates of this character, the estate was such that the 
issue of the wife, had there been any, would have been entitled to 
take by descent. In the cases in which it was denied, the issue 
could not have taken by descent. This was the nature of the estate 
in Sumner v. Partridge, 4 and Barker v. Barker. 5 In both these cases, 
as shown by the opinion of the Vice-Chancellor in the latter case, 
the issue took under the original limitation, as purchasers, and not 
by descent. They did not receive their estate from the mother, but 
from the original donor. 6 The effect of this construction of the lim- 
itation is not to defeat the estate of the wife, but, in the event of 
her leaving issue, to convert it, ab initio, into an estate in herself 
for life, with remainder in fee to such issue. Viewed in this light, it 
is clear that the husband could not be tenant by the curtesy, as a 
mere life estate is not sufficient to give either curtesy or dower. 7 

38. In no case has it been held that where the limitation is of 



1 Supra, \ 21. 2 See ante, \ 9 el seg. 
» App. No. II. by Jacob; 2 Roper, Husb. and Wife, 506, 507. 

* Supra, I 19. 6 Supra, \ 29. 

6 Accord. Adams v. Beekman, 1 Paige, 631 ; supra, I 35. ' Post, ch. 17. 



OH. XIV.] DETERMINABLE ESTATES. 307 

such character that the estate determines during the coverture, the 
wife is dowable. In order to sustain a claim to dower in such case, 
it would be necessary to hold that after the estate of the husband 
had ceased, and the party entitled under the limitation over had 
entered and enjoyed the premises, the former estate-should partially 
revive upon the determination of the coverture by the death of 
the husband. This would appear to be totally irreconcilable with 
principle. 1 

In Flavill v. Ventrice, 2 the event which determined the husband's 
estate happened after his death, and the judges were equally divided 
upon the question as to whether his widow was entitled to dower. 

1 Jacob's note, 2 Roper, Husb. and Wife, 502-7. 3 Ante, \ 18. 



CHAPTER XV. 



DOWER IN ESTATES IN REMAINDER AND REVERSION. 



\ 1-6. The general doctrine. 
7, 8. Lands subject to prior right of 
dower. 

9-18. Rule where the estate comes 
by descent. 

19. Rule where the estate is acquired 
by devise. 



\ 20. Illustration of the doctrine. 

21, 22. Release or extinguishment of 
the elder right. . 

23-26. Rule where the estate is ac- 
quired by purchase. 



The general doctrine. 

1. Estates in remainder or reversion, expectant upon an estate 
of freehold, are not subject to dower, unless the latter estate term- 
inate during the coverture, so as to confer upon the husband the 
right to the immediate freehold. This is a well-established principle 
of the common law. 1 

2. In the United States the common law rule is generally adhered 
to, and it may be laid down as the American as well as the English 
doctrine, that no right of dower attaches upon reversionary estates. 2 



i Supra, chap. 11, $ 5; Co. Litt. 32, a.; Perk. sees. 339, 340; Park, Dow. 49, 
53, 54; 1 Roper, Husb. and Wife, by Jacob, 359; 1 Greenl. Cruise, 162, g 8; 4 
Kent, 38-40; 1 Washb. Real Prop. 154, g§ 5, 6. 

2 Eldredge v. Forrestal, 7 Mass. 253 ; Shoemaker v. Walker, 2 Serg. & Rawle, 
554 ; Blood o. Blood, 23 Pick. 80 ; Fisk v. Eastman, 6 N. H. 240 ; Moore v. Esty, 
Ibid. 479 ; Williams v. Armory, 14 Mass. 20 ; Reynolds v. Reynolds, 5 Paige, 161 ; 
Safford v. Safford, 7 Paige, 259 ; Dunham v. Osborn, 1 Paige, 634 ; Bear v. Snyder, 
11 Wend. 592 ; Green v. Putnam, 1 Barb. 500 ; Durando v. Durando, 23 N. Y. (9 
Smith,) 331 ; S. C. 9 Amer. Law Reg. 630 ; Arnold v. Arnold,, 8 B. Mon. 204 ; North- 
cutt v. Whipp, 12 B. Mon. 65; Apple v. Apple, 1 Head, (Tenn.) R. 348; Beardslee 
v. Beardslee, 5 Barb. 324; Weir v Tate, 4 Ired. Eq. R. 264; Blow v. Maynard, 2 
Leigh, 29; Cocke v. Phillips, 12 Leigh, 248; Otis v. Parshley, 10 N. H. 403; Gard- 
ner v. Greene, 5 R. Is. 104; Watkins v. Thornton, 11 Ohio State R. 367, as to cur- 
tesy ; Robison v. Codman, 1 Sumn. 121. 

In Kentucky it is held that this principle does not extend to reversionary interests 
in slaves. Arnold v. Arnold, 8 B. Mon. 204; Northcutt v. Whipp, 12 B. Mon. 65. 
(308) 



CH. XV.] ESTATES IN REMAINDER AND REVERSION. 309 

It is elsewhere shown that an outstanding mere chattel interest is no 
impediment to dower, and the general proposition here stated is to 
be taken with that qualification. 1 

3. While it is true, as a general rule, that the determination or 
surrender of the prior estate during the coverture will enable the 
inchoate right of dower to attach, 2 yet it is to be understood that 
such determination or surrender must take place while the husband 
is seized of the estate in remainder or reversion. If he alien the 
inheritance during the existence of the particular estate, the right 
of the wife to be endowed is thereby entirely defeated. 3 The result 
is the same if the particular estate be not determined during the 
lifetime of the husband. 4 

4. In a case determined in Maine, the husband, while seized of 
a remainder expectant upon an estate for life, executed a mort- 
gage of the premises in fee. He died during the continuance of the 
particular estate. Upon a proceeding for dower instituted by his 
widow against the mortgagee, who had entered and was in possession 
of the premises under the mortgage, while the general doctrine de- 
nying dower to estates in remainder was recognized, it was, never- 
theless, decided, that as the mortgagee had taken and held possession 
under a conveyance which assumed to pass the entire fee simple es- 
tate, he was estopped to deny the seizin of the husband, and upon 
this principle the claim for dower was allowed. 6 But the New Hamp- 
shire courts have refused to extend this doctrine to cases where the 
tenant for life and the remainder-man have joined in a conveyance 
in fee. In one case arising in that State, in referring to Nason v. 
Allen, the court observed : " This case differs from the one now 
under consideration, inasmuch as the tenant here claims under a 
deed which was jointly executed by the husband and another ; and 
though possession was taken under this deed, he claims and relies 
entirely on the title and possession of the other grantor, to an ex- 

1 Chapter 11, \\ 5, 11, 12. See the authorities there cited. 

2 Vide chap. 11, \\ 13-15. 

3 Eldredge v. Forrestal, 7 Mass. 253; Williams v. Armory, 14 Mass. 20; Otis v. 
Parshley, 10 N. H. 403 ; Shoemaker u. Walker, 2 Serg. & Rawle, 554 ; Dunham v. 
Osborn, 1 Paige, 634; Gardner v. Greene, 5 R. Is. 104; Hughes on Writs, 149;. 
Park, Dow. 54. 

* See chap. 11, j! 15; Dunham v. Osborn, 1 Paige, 634; Reynolds v. Reynolds, 
5 Paige, 161 ; Weir v. Tate, 4 Ired. Eq. R. 264; Apple v. Apple, 1 Head, (Tenn.) R. 
348 ; Perk. sec. 335. 

* Nason v. Allen, 6 Greenl. 243. 



310 THE LAW OF DOWER. [CH. XV. 

tent that would preclude a right of dower on the part of the demand- 
ant. Such a joinder of different claimants, in a general conveyance, 
is of very frequent occurrence ; and if the tenant, notwithstanding 
the general nature of the deed, may be considered as entering and 
holding in accordance with the several titles of the grantors, then 
there can be no estoppel, except to prevent the denial of such hold- 
ing." 1 

5. The Massachusetts Colony law of 1641 expressly gave dower 
in estates in remainder and reversion. It was so construed, how- 
ever, by limiting its operation to cases where the particular estate 
was less than a freehold, as to defeat the apparent purpose of the 
enactment. 2 In Ohio, by a recent amendatory act, dower is given 
in all real estate of which the husband, at his decease, held the fee 
simple in remainder or reversion. This provision, it is seen, is so 
worded as to enable the husband to convey the estate at any time 
during the coverture, free from dower. And a proviso annexed 
declares that dower shall not be assigned in such cases until after 
the termination of the prior estate. 3 The effect of this enactment 
is to change the common law rule requiring the particular estate to 
be determined during the coverture. 

6. Mr. Crabb, in his work on Keal Property, states that the Dower 
Act of 3 & 4 Will. IV., chapter 105, 4 has abrogated the rule of the 
common law excluding dower from estates in remainder and rever- 
sion. 6 " As by the Dower Act," he says, "seizin is not necessary 

1 Otis v. Parshley, 10 N. H. 403, 407. 

> See 4 Dane, 664; Stearns' Real Act. 2d ed. 279; ante, ch. 2, \ 6. The Maine 
statute of Feb. 19th, 1821, gave dower in estates "in possession, reversion, or 
remainder." Laws of Maine, (1821,) vol. i. p. 150, § 6. But this provision is no 
longer in force. See, also, Durham v. Angier, 20 Me. 242. 

s Act of March 27th, 1858 ; vol. lv. Ohio Laws, 24 ; 1 Swan & Critch. Stat. 516, \ 1. 
Judge Reeve is of opinion that the Connecticut statute, which allows dower only in 
such real estate as the husband dies possessed of, should be so construed as to em- 
brace estates in remainder and reversion. " I apprehend," he says, " that the pos- 
session of any tenant, which is not an adverse holding to the husband, would be a 
sufficient possession of the husband to entitle the wife to dower; and that, in allow- 
ing dower to the widow, the precise technical meaning of the word possessed has 
been disregarded. I should, therefore, suppose that the wife would be entitled to 
dower in the reversion, when the lease was to B. for life ; for such possession is not 
adverse to A." Dom. Rel. 57, 58. The editor of the second edition of Judge 
Reeve's work expresses the same opinion as to the construction to be given the Ver- 
mont statute. Ibid. note. 
* See Appendix. 

» 2 Crabb, Real Prop. 136 ; Ibid. 158 ; see, also, p. 132. 



CH. XV.] ESTATES IN REMAINDER AND REVERSION. 311 

to give title to dower, that law can now apply only to women married 
before 1st January, 1834." 1 No reported case has yet appeared 
supporting this construction of the statute, and it may well be doubted 
whether it is the true construction. It would seem that the real 
purpose of the act was to dispense with a technical seizin of the legal 
estate as a requisite of dower, or to abolish the distinction between 
legal and equitable estates, and place them upon the same footing. 
Equitable estates are made subject to dower precisely as at common 
law legal estates were subject to that interest. But it has never 
been understood, at.least in the United States, that equitable estates 
in remainder and reversion are subject to dower, unless made so by 
express statute, and in one reported case it was expressly held that 
they are not. 2 

Lands subject to prior right of dower. 

7. Bos de dote peti non debet — " Dower ought not to be sought for 
out of dower" — is an old and familiar maxim of the law, 3 so closely 
related to the rule excluding dower from reversionary estates, that 
it is difficult to separate them. Indeed, the maxim may be regarded 
as the necessary and logical result of the rule itself, and as being 
founded upon the same principle. 4 

8. A case put by Lord Coke, to illustrate the proper application 
of this maxim, is as follows : " If there be grandfather, father, and 
son, and the grandfather is seized of three acres of land in fee, and 
taketh wife and dieth, this land descendeth to the father, who dieth 
either before or after entry: now is the wife of the father dowable. 
The father dieth and the wife of the grandfather is endowed of one 
acre and dieth ; the wife of the father shall be endowed only of the 
two acres residue, for the dower of the grandmother is paramount 
the title of the wife of the father, and the seizin of the father which 
descended to him (be it in law, or actual) is defeated ; and now upon 
the matter, the father had but a reversion expectant upon a freehold, 
and in that case dos de dote peti non debet, although the wife of the 

i 2 Crabb, Real Prop. 186. 

5 Shoemaker v. Walker, 2 Serg. & Rawle, 554. 

3 It prevailed in the time of Glanville. Glanv. Lib. 6, c. 17 ; 1 Reeves' Hist. Eng. 
Law, 102 ; 1 Greenl. Cruise, 164, <S 20. 

4 Perk. sec. 315 ; Bac. Ab. Dower and Jointure, E.; Park, Dow. 154-6 ; 4 Dane's 
Abr. 671 ; D'Arcy v. Blake, 2 Sch. & Lefr. 387. 



312 THE LAW OF DOWER." [CH. XV. 

grandfather dieth, living the father's wife." 1 It is essential to a cor- 
rect understanding of the point to keep carefully in view all the cir- 
cumstances of the case, precisely as they are here stated. First : 
The lands come to the father by descent. Second : The widow of 
the grandfather survives the father. Third : Her dower is actually 
assigned her. Each of these particulars has a direct bearing upon 
the legal proposition presented by the learned author in the quota- 
tion above given. 

1. The lands come by descent. 

9. This is an important element in the case. Where lands are 
acquired by purchase, the rule is materially different, as will be ex- 
plained hereafter. 2 Upon the death of the grandfather, the lands 
descended to the father, subject to the dower right of the widow of 
the former. In such case, upon endowment, the possession or seizin 
of the widow relates back and takes effect from the instant of the 
decease of the grandfather ; her estate being, as already shown, a 
continuation or prolongation of the husband's estate. 3 It follows, 
that as to the lands assigned her in dower, she is seized by title 
paramount to that of the heir — the father in the case put by Coke — 
and that as to those particular lands, the intermediate seizin of the 
heir is defeated. The law, in such case, looks upon the intermediate 
seizin as having never existed, and the estate of the heir in the lands 
so set apart, is, by force of this principle, converted, as from the mo- 
ment of the inception of his right, into an estate in reversion, ex- 
pectant upon the life estate of the widow. 4 Here the rule holding 
reversionary estates not liable to dower, applies. As the father had 



1 Co. Litt. 31, a. Substantially the same case is staled by Perkins, and numerous 
authorities are cited from the Year Books in its support. Perk. sec. 315. 

2 Infra, \ 23 et seq. 

s Supra, ch. 13, H 12-14; ch. 14, <S 1. 

* Perk. sec. 315; Park, Dow. 155, 156; Watk. on Desc. 65 ; 1 Washb..Real Prop 
209, <S 10 ; 1 Hilliard on Real Prop. 2d ed. 135, § 50 ; 4 Dane's Ab. 664 ; Wind 
ham v. Portland, 4 Mass. 384, 388 ; Dunham v. Osborn, 1 Paige, 634 ; Reynolds v. 
Reynolds, 5 Paige, 161 ; Safford v. Safford, 7 Paige, 259 ;' Matter of Cregier, 1 Barb 
Ch. R. 598 ; Durando v. Durando, N. Y. Court of Appeals, 23 N. Y. (9 Smith,) 331 
S. C. 9 Amer. Law Reg. 630; Leavitt v. Lamprey, 13 Pick. 382; Eldredge v. For 
restal, 7 Mass. 253 ; Beekman v. Hudson, 20 Wend. 53 ; Geer v. Hamblin, 1 Greenl 
54; Apple u. Apple, 1 Head, (Tenn.) R. 348; Potter v. Burohsted, (1773,) Story's 
PI. 365, note. 



CH. XV.J ESTATES IN REMAINDER AND REVERSION. 313 

a reversionary interest only in the part assigned to the ■widow of the 
grandfather, and, by operation of the doctrine of relation, had no 
seizin of the freehold in that portion during the coverture, the dower 
right of his widow is limited to the remaining two-thirds in which he 
was seized of the freehold or estate in possession, as well as of the 
inheritance. 1 

2. The widow of the ancestor survives the heir. 

10. This is another material point to be observed. For, if the 
■widow were to die during the lifetime of the heir, her estate would, 
of course, be determined, and the heir would thereupon become seized 
of the entire freehold and inheritance. But her death subsequent 
to the decease of the heir, though in the lifetime of his widow, would 
not give dower to the latter, for the reason before stated, that the 
particular estate must terminate during the coverture in order to 
render the widow dowable. 2 So if the heir part with his reversionary 
interest before the death of the ancestor's widow, the result is the 
same. 3 

3. The dower of the ancestor's widow is actually assigned. 

11. This is also a requisite material to the application of the rule 
referred to. If there be no assignment of dower to the ancestor's 
widow, the seizin, or estate in possession which descended upon the 
heir, is not defeated to any extent, and consequently his widow is 
entitled to dower in the entire premises. It is immaterial, however, 
as shown in the case put by Coke, whether the assignment be made 
during the lifetime of the heir or after his decease. In either case, 
upon the principle already considered, the effect of the assignment, 
when made, is to convert the husband's estate in the portion assigned 
to the elder widow, into an estate in reversion ab initio, and, as a 
necessary consequence, to defeat the dower claim of his widow in 
that proportion of the premises.* This rule, however, is subject to 

r See authorities cited in preceding note. 

2 Ante, \ 3, and authorities there referred to. But a distinction is taken, and the 
rule is different where the widow of the heir is actually endowed before the widow 
of the ancestor, and survives her. See the next section. 

s Ibid. 

* Park, Dow. 54, 157 ; 1 Cruise, Dig. tit. 6, ch. 3, \\ 22, 23 ; Hughes on Writs, 
149 ; Hitchens v. Hitchens, 2 Vern. 405 ; Reynolds v. Reynolds, 5 Paige, 161 ; Saf- 



314 THE LAW OF DOWER. [CH. XV. 

a qualification that should be here noted. Where the widow of the 
heir has dower assigned her in the whole land before the widow of 
the ancestor has been endowed, whether such assignment was volun- 
tary or obtained by suit, if the widow of the ancestor is subsequently 
endowed, the widow of the heir, after the death of the dowress whose 
right was paramount, will be entitled to be restored to her dower in 
the whole premises. 1 The reason of this diversity — to use the quaint 
language of Coke — is, because the junior widow " had in it an estate 
for term of her life, and the estate for the life of the grandmother is 
lesser in the eye of the law as to her than her own life." 2 Mr. Ro- 
per says, by way of elucidation of this anomalous distinction, that 
" by the endowment, the mother became seized of the legal freehold 
for her life ; and the recovery of the acre by the grandmother did 
not defeat such estate in toto, but during her life only. The mother's 
estate for life, therefore, being, in relation to herself, a larger inter- 
est in consideration of law, than an estate pur auter vie, viz. during 
the grandmother's life, the mother retained a reversionary interest 
in the acre after it was recovered from her, expectant upon the 
grandmother's death, on the happening of which event, the mother 
is entitled to reclaim the acre in dower." 3 

12. Cases sometimes occur in which an actual assignment of dower 
is not deemed essential to the application of the maxim under con- 
sideration. These are ordinarily cases in partition, where conflicting 
claims to dower in the same lands arise, and where it is scarcely 
practicable to suspend the proceedings for the purpose of causing 
successive assignments to be made. In such cases the decree of the 
court establishing the right of dower in the elder widow, and direct- 
ing it to be set off, is treated, in equity, as equivalent to an actual 
assignment, and is attended with the same consequences. 

13. Dunham v. Osborn 4 was a case of this description. In that 
case partition was sought of lands which had formerly belonged to 
one Maxwell, and which were sold on execution against him, in his 
lifetime. One Dunham acquired two-thirds of the interest of the 



fordu. Safford, 7 Paige, 259; Elwood v. Klock, 13 Barb. 50; Robinson v. Miller, 2 
B. Mon. 284, 288 ; Geer v. Hamblin, 1 Greenl. 54, 56 ; 4 Kent, 65 ; 1 Washb. Real 
Prop. 210. 

1 Co. Litt; 31, b.; Perk. sec. 316 ; Watk. Descents, 76 et seg.; 1 Roper, Husb. and 
Wife, by Jacob, 383 et seq.; In the Matter of Cregier, 1 Barb. Ch. 598, 602. 

2 Co. Litt. 31, b. 3 1 Roper, Husb. and Wife, by Jacob, 383, 384. 
* Dunham ». Osborn, 1 Paige, 634. 



CH. XV.] ESTATES IN REMAINDER AND REVERSION. 315 

purchaser under the execution, and the defendant, Osborn, obtained 
the remaining third. Dunham and Maxwell both deceased. Upon 
the hearing it was admitted that the widow of Maxwell was en- 
titled to dower in the entire premises, but it was insisted that the 
widow of Dunham had no claim of dower whatever, upon the ground 
that there could not be two rights of dower in the same premises, 
upon the seizin of two successive owners. The chancellor allowed 
Mrs. Dunham her dower in the share of her husband, but restricted 
it to the proportion not embraced in the dower right' of Mrs. Max- 
well. "The widow of Maxwell," he observed, "is entitled to have 
assigned for her dower one third of the premises, and Mrs. Dunham 
will be entitled to dower in two thirds of the reversion of that third, 
if she survives Mrs. Maxwell. 1 She is also entitled to dower in two 
thirds of the other two thirds of the premises from the present 
time." 

14. Reynolds v. Reynolds 2 was of the same character, and the 
same principle was applied by the court. The doctrine was also 
there distinctly announced, that a decree of the court directing the 
dower of the ancestor's widow to be set off to her, is to be considered 
in equity as an actual assignment, and has the effect of disaffirming 
the intermediate seizin of the heir as fully and completely as an 
actual ouster of the possession. And this ruling was followed, and 
the subject fully discussed in the subsequent case of Safford v. Saf- 
ford. 3 

• 15. A case was decided in the Supreme Court of New York in 
which the distinction already adverted to, between lands acquired 
by descent and lands obtained by purchase, was entirely overlooked. 
The court, in that case, upon a very cursory examination of the 
authorities, it would seem, recognized the right of dower in a rever- 
sion expectant upon the death of the elder dowress, although the 
lands had come to the heir by descent, charged with such dower. 4 

1 The allowance of dower in this reversion proceeded upon the distinction between 
the case of lands acquired by descent and lands acquired by purchase, which will be 
more particularly refert-ed to presently. Infra, \\ 23-26. In the case cited, the 
husband of Mrs. Dunham took as a purchaser, and she, therefore, was dowable of 
the reversion. 

2 Reynolds v. Eeynolds, 5 Paige, 161. 

8 Safford v. Safford, 7 Paige, 259. The doctrine here referred to was also applied 
by Chancellor Walworth In the Matter of Cregier, 1 Barb. Ch. 598, 602. And see 
Litt. sec. 54. 

4 Bear v. Snyder, 11 Wend. 592. See comments of Chancellor Walworth on this 
case, In the Matter of Cregier, 1 Barb. Ch. 598, 600. 



316 THE LAW OF DOWER. [CH. XV. 

But in quite a recent case, the Court of Appeals of that State, 
in express terms enforced the distinction between the two classes 
of cases. 1 

16. In most, if not all the States, provision is made by statute for 
the assignment of dower in the rents and profits, in cases where the 
premises are of such nature, or in such condition as not to admit of 
an assignment by metes and bounds. Whether the maxim, dos de 
dote peti non debet, is applicable where the assignment is in this form, 
does not appear to have ever been considered by the courts. In such 
case the tenant is not deprived of the possession of any portion of 
the estate ; his seizin of the freehold is undisturbed. The widow, in 
lieu of dower in the lands, has an order or decree for the payment 
of an annual sum of money during her life, and this sum is made a 
charge or lien upon the entire premises. Hence, the estate of the 
tenant is not, in fact, converted into an estate in reversion in any 
part of the lands. It would seem, however, that the decree for dower, 
and its assignment in the rents and profits, should, in equity, and 
perhaps at law, be treated as equivalent to an assignment by metes 
and bounds, and the right of a second dowress be restricted accord- 
ingly. In Dunham v. Os.born, the chancellor directed that if a sale 
of the premises became necessary, the dower interest of the respect- 
ive claimants in the purchase money should be estimated upon the 
same principles applicable to an assignment in the lands. 2 

17. The following case was decided in Mississippi : Certain lands 
of an intestate were sold by his administrators to A. Dower was" 
allotted to the widow of the intestate, who also sold her interest to 
the same purchaser. A. died, leaving a widow. Upon a bill for 
foreclosure for a portion of the unpaid purchase money, filed by the 
administrators who made the sale, the widow of A. claimed dower in 
the dower interest purchased by him as above stated. It was held 
that the purchase of such dower inured to the benefit of the admin- 
istrators, and that A.'s widow was not entitled to dower in the prem- 
ises : first, because the interest thus acquired merged in the fee ; and 
secondly, if the life estate could be considered as existing separately 
from the remainder, although united in the same person, still such 
an estate was not subject to dower. 3 

i Durando v. Durando, 23 N. Y. (9 Smith,) 331 ; 9 Amer. Law Reg. 630. 
2 Dunham v. Osborn, 1 Paige, 634, 636. See In the Matter of Cregier, 1 Barb. 
Ch. 598 ; Leavitt v. Lamprey, 13 Pick. 382. 
s Fisher v. Grimes, 1 S. & M. Ch. R. 107. 



CH. XV.] ESTATES IN REMAINDER AND REVERSION. 317 

18. If the widow of the ancestor recover dower against the heir, 
or his widow, by erroneous judgment or decree, and the judgment or 
decree be afterwards reversed, it seems that the mesne seizin of the 
heir would be revived, and the widow of the latter be restored to her 
right of dower. 1 And although there had been no intermediate 
seizin, yet if the reversal occurred in the lifetime of the heir, the 
life estate of the ancestor's widow would thereby be avoided, and 
the reversionary estate of the heir be turned into an estate in pos- 
session. In this manner he would become invested with the freehold 
and inheritance in the entire premises, during the coverture, and the 
right of dower of his wife would attach accordingly. 2 



Lands acquired by devise. 

19.. The maxim, dos de dote peti non debet, applies, as well where 
lands are acquired by devise, as where they come by descent. The 
devisee is not & purchaser in the sense in which that term is here 
employed. This point was fully discussed and expressly settled, in 
the cases cited in the note. 3 But if the widow of the devisor make 
no claim for dower ; or if she be barred of her dower in the particular 
lands by reason of devises or bequests contained in the will in lieu 
thereof, which she accepts, the widow of the devisee will be dowable 
of the whole lands. 4 

20. Judge Reeve, has the following illustration of the operation 
and effect of the above maxim : If A. sells to B., and B. to C, and 
C. to D., and D. to E., and the husbands all die, leaving their re- 
spective wives living, the widow of A. is entitled to be endowed of 
one-third of the estate ; the widow of B. is entitled to be endowed 
of one-third of what remains, after deducting the dower of the first 
wife ; the widow of C. of one-third of what remains after deducting 
the dower of the wives of A. and B.; and so on to the wife of D. 



iCo. Litt. 15, a., n. 7; 7 H. 5, 4. 

2 Park, Dow. 157. 

» Durando v. Durando, N. Y. Court of Appeals, 23 N. T. (9 Smith,) 331 ; S. C. 9 
Amer. Law Reg. 630, reviewing Cregier v. Osborne, 1 Barb. Ch. R. 598 ; Eldredge 
v. Forrestal, 7 Mass. 253. See, also, Beekman ». Hudson, 20 Wend. 53 ; Robinson 
v. Miller, 2 B. Mon. 284, 288 ; Hitchens v. Hitchens, 2 Vern. 403 ; 1 Washb. Real 
Prop. 209, <j 29. 

4 Geer v. Hamblin, 1 Greenl. 54, 56 ; Robinson v. Miller, 2 B. Mon. 284; Hitchens 
v. Hitchens, 2 Vern. 403 ; 1 Cruise, p. 153. 



318 THE LAW OF DOWER. [CH. XV. 

And if we suppose the estate to consist of nine acres, the wife of A. 
would be endowed of three acres ; the wife of B. of two acres ; the 
wife of C. of one acre and a third, and the wife of D. of one-third 
of the remaining two acres and two-thirds. 1 

Release or extinguishment of the elder right. 

21. In some of the reported cases a distinction is taken between 
the case of a release of the elder right of dower to the grantee of the 
heir or devisee, before an actual assignment, but after a judgment 
for dower, and the case of a release before any judgment or decree 
is rendered. Thus, in Leavitt v. Lamprey, 2 the widow having the 
elder right sued for her dower, and obtained judgment against the 
tenant, and then released to him. Subsequently the widow having 
the junior right instituted proceedings and claimed dower out of the 
whole estate. But the court, notwithstanding the release of the elder 
claim, restricted her to dower in two-thirds t>f the estate. In Elwood 
v. Klock 3 the release was made after action brought, but before any 
judgment or decree. It was held that the release neither operated 
as an assignment of the dower, nor as a conveyance of it to the 
grantee ; but that the right thereby became extinguished. In ac- 
cordance with this view, dower in the entire premises was allowed to 
the junior widow. 4 

22. In Michigan it is provided by statute that where there are 
two claims of dower, and the prior right has been satisfied, with or 
without assignment, there shall be no dower to that extent during 
the lifetime of the first dowress. 5 

The doctrine where the estate is acquired by purchase. 

23. To the paragraph before quoted from Lord Coke, 6 the follow- 
ing observations are added : "And here note a diversity between a 
descent and a purchase. For, in the case aforesaid, if the grand- 
father had enfeoffed the father, or made a gift in tail unto him, there, 
in the case above said, the wife of the father, after the decease of 

1 Reeve's Dom. Rel. 58 ; 4 Kent, 64, note. 

2 Leavitt v. Lamprey, 13 Pick. 382. 
» Elwood v. Klock, 13 Barb. 50. 

* See, also, Atwood v. Atwood, 22 Pick. 283. 

' 2 Comp. Laws Mich. 855, § 2802. 6 Ante, \ 8. 



CH. XV.J ESTATES IN REMAINDER AND REVERSION. 319 

the grandfather's wife, should have been endowed of that part as- 
signed to the grandmother ; and the reason of this diversity is, for 
that the seizin that descended after the decease of the grandfather 
to the father, is avoided by the endowment of the grandmother, whose 
title was consummate by the death of the grandfather ; but in the 
case of the purchase or gift, that took effect in the life of the grand- 
father, (before the title of dower of the grandmother was consum- 
mate,) is not defeated, but only quoad the grandmother, and in that 
case there shall be dos de dote." 1 

24. In the foregoing case, the father, or, in other words, the 
grantee, becomes seized of the estate by virtue of the grant, during 
the lifetime of the ancestor, the grantor. The seizin thus acquired 
can not be defeated absolutely by the seizin of the ancestor's widow, 
which, even by relation, can be carried no further back than the 
instant of the ancestor's death, and which, therefore, would leave 
the seizin of the heir intervening between the date of the grant and 
the period of the ancestor's death, wholly unimpaired and undis- 
turbed. Hence, if the grantee (the father, as the case is stated by 
Coke) were married at any time before the assignment of dower to 
the ancestor's widow, 2 the seizin thus existing would be sufficient to 
confer upon his wife a right of dower in the whole estate, subject 
only to the dower interest of the ancestor's widow. If the latter 
were endowed during the lifetime of the grantee, such endowment 
would operate as an interruption of his seizin in the particular lands 
set off, during the existence of her estate. If the grantee were to 
die during her lifetime, and after she had been endowed, then his 
widow would be dowable of the remainder of the estate, including 
the reversion of that portion before set off. If, before the assign- 
ment of dower to the ancestor's widow, the grantee should die, and 
his own widow be endowed, then the subsequent assignment of dower 
to the elder dowress would operate to interrupt the enjoyment of the 
other widow in a proportionate part, during the lifetime of the former, 
but no longer. 3 

1 Co. Litt. 31, a. and b.; accord. Perk. sec. 315. 

2 See ante, \ 11. 

8 Park, Dow. 156; 1 Roper, Husb. and Wife, by Jacob, 382-4; 1 Cruise, Dig. 
164 ; 4 Dane, Ab. 663 ; 1 Washb. Real Prop. 210, \ 29 ; Bustard's case, 4 Co. 122, a. ; 
Geer v. Hamblin, 1 Greenl. 54; Dunham u. Osborn, 1 Paige, Ch. 634; Durando 
v. Durando, 23 N. Y. (9 Smith,) 331; S. C. 9 Amer. Law Reg. 630; Manning v. 
Laboree, 33 Maine, 343 ; In the Matter of Cregier, 1 Barb. Ch. 598. 



320 THE LAW OP DOWER. [CH. XV. 

25. This point appears to have been involved in an early case 
found in the reports. 1 A grandfather gave lands to the father, in 
tail. The latter died, and his widow was endowed of the third part 
of the whole estate by his son. Afterwards the grandfather died, 
and his widow brought a writ of dower against the widow of the 
father. The latter vouched the son, by whom she had been endowed, 
and the question was as to how much she should recover against him 
in value ; whether a third of two parts, or a third of the whole ; it 
was adjudged that she should recover generally to the value which 
she lost, "for dower tolled the estate which by law descended, but 
not the estate acquired and gained by purchase." 2 

26. But even in a case of purchase, if the grantee do not marry 
until after the assignment of dower to the grantor's widow, the 
maxim, dos de dote peti non debet, applies, and this upon the prin- 
ciple already stated, that the assignment converts the estate of the 
grantee into an estate in reversion in the lands assigned. 3 As to 
those lands, he would have no seizin during the coverture, (unless the 
grantor's widow should die in his lifetime,) of the present freehold 
estate. 



i Paris'a case, 5 E. 3, Vouch. 249 ; 4 Co. 122, a. 

2 Park, Dow. 156, 157. See, also, Co. Litt. 31, b.; Perk. sec. 316. 

3 Ante, 1 11. 



CHAPTER XVI. 

DOWER IN ESTATES IN JOINT TENANCY, COPARCENARY AND 

COMMON. 



\ 1-5. The rule at common law as to 
estates in joint tenancy. 

6-12. Statutory modifications in the 
United States. 



\ 13-17. Dower in estates in coparce- 
nary and common. 

18-33. Effect of sale in partition. 



The rule at common law. 

1. The doctrine of the common law excluding dower from estates 
held in joint tenancy has already been adverted to. 1 It is thus 
stated by Littleton : "And it is to be understood that the wife shall 
not be endowed of lands or tenements which her husband holdeth 
jointly with another at the time of his death." 2 It is difficult to 
trace the origin of this rule. The earliest text-books in which it is 
laid down appear to be Fitzherbert's Natura Brevium and Eolle's 
Abridgment. 3 It is also found in the text of Brooke. 4 In the Na- 
tura Brevium, the 34 Edward L, "Dower," 179, is cited. Brooke 
cites and relies upon the 3d Henry IV., page 6 ; but all the treatises 
fail to give the particulars of these cases, or the reasoning upon 
which they were determined, stating simply the naked point decided. 
Chief Baron Gilbert has supposed the rule to be referrible to feudal 
principles: "In that case of joint tenancy," he says, "during the 
joint seizin, the wife's contract of dower can never attach upon the 
estate, because the other joint tenant comes in by the feudal con- 
tract, superior to the marriage contract ; so to the wife's infeudation ;: 
for though the marriage contract had been prior to the joint tenancy, 
yet it will not attach upon it, because the estate in joint tenancy is 



i Chap. 12, H 33-35. > Litt. g 45. 

8 Fitzh. N. B. 147, (E.); Ibid. 150; 1 Roll. Abr. 676. 

* Bro. Dow. pi. 30. The point is also decided as to curtesy, in Cowley v. Ander- 
son, Toth. 83. 

vol. I. 21 ( 321 ) 



322 THE LAW OF DOWER. [CH. XVI. 

so created that it should survive. Et cujus dare ejusdem disponere; 
therefore, though the marriage were precedent, yet it can not take 
place upon this infeudation." 1 Lord Coke's explanation of the rule 
is in these words : " The reason of this diversity is for that the joint 
tenant, which surviveth, claimeth the land by the feoffment, and by 
survivorship, which is above the title of dower." 2 

2. So long as the rule is confined within the limits fairly implied 
in the text above quoted from Gilbert and Coke, the reasoning upon 
which it proceeds is very easily understood. As against the sur- 
vivor, it is plain there can be no dower, because, from the very nature 
of the estate, and by virtue of the original grant, the entire interest 
becomes absolutely vested in him upon the death of the cotenant. 
The rule, however, as established, goes much further than this, and 
not only denies dower as against the survivor, but absolutely pre- 
cludes it from attaching during the existence of the joint estate. 
The principle upon which this extreme doctrine rests is not entirely 
obvious. There is no essential quality in a joint estate necessarily 
incompatible with the existence of an inchoate dower interest, and 
by analogy to the cases of estates determinable by condition, 3 or by 
title paramount, it would seem perfectly consistent with principle to 
hold that the right of dower attaches upon such estate, subject only 
to be defeated by the survivorship of the. cotenant of the husband. 4 
But the doctrine of the common law is too well settled to be shaken 
at the present day ; 5 and, indeed, is carried into the dower act re- 
cently adopted in England. 6 

3. One consequence resulting from this rule is, that if the husband 
sever the joint estate by conveying his share to a third person, the 
right of dower is thereby entirely defeated. 7 Ordinarily any act 
which determines the joint tenancy during the lifetime of the hus- 

i Gilb. Uses, 404. ' Co. £itt. 37, b. 

» Supra, ch. 14, || 3-5. * Park, Dow. 38. 

6 Lift. sec. 45; 1 Roll. Abr. 676; Fitzh. N. B. 147 (E.) and 150; Bro. Dow. pi. 
30; Co. Litt. 31, b.; Cowley v. Anderson, Toth. 83; Sutton v. Rolfe, 3 Lev. 84; 1 
Roper, Husb. and Wife, by Jacob, 367; Perk. sec. 334; Park, Dow. 37, 40; Watk. 
on Conv. 42; 3 Prest. Abstr. 367; Burton, Real Prop, g 353; 4 Kent, 37; Mayburry 
v. Brien, 15 Peters, S. C. R. 21 ; Hamblin v. Bank, &c, 19 Maine, (1 Appl.) 66 ; see 
ch. 12, I 33 et seq. 

e 3 & 4 Will. IV., ch. 105, <j 2. See Appendix. 

i Fitzh. N. B. 160; Bro. Dow. pi. 30; Co. Litt. 31, b.; 1 Roper, Husb. and Wife, 
by Jacob, 367 ; Park, Dow. 39; 4 Kent, 37 ; Mayburry v. Brien, 15 Pet. 21 ; supra, 
ch. 12, \ 33. 



CH. XVI.] ESTATES IN JOINT TENANCY, ETC. 323 

band, entitles the wife to dower ; but it is beld that where the joint 
estate is severed by the alienation of the husband, the sole seizin 
acquired by him in virtue of the conveyance is instantaneous only, 
and passes from him by the same act by which he acquired it, and, 
therefore, that no right of dower attaches. 1 Had a contrary doctrine 
prevailed, and dower been held to attach upon the joint estate, sub- 
ject only to be defeated by survivorship, then, upon the determination 
of the joint tenancy by the alienation of the husband, and the conse- 
quent destruction of the possibility of survivorship, the right of the 
wife would become fixed, liable only to be defeated by her own act, 
or by her decease in,the lifetime of the husband. 

4. The rule denying dower to joint estates applies where either 
the life estate or the estate of inheritance is of that character. In 
order to confer dower, there must be a sole seizin, both of the free- 
hold and of the inheritance. 2 Some instances of the application of 
this principle have been noticed in a previous chapter. 3 But a sole 
seizin of the freehold and inheritance, in any particular share of the 
lands, is sufficient to give dower in that share, even though the re- 
mainder of the estate be held by a joint seizin.* 

5. Except where the joint estate is terminated by the alienation 
of the husband, 5 the rule is that any act which severs the joint ten- 
ancy, and clothes the husband with a sole seizin at any time during 
the coverture, entitles the wife to her dower. 6 And where the joint 
estate is severed by the conveyance of his share by one of the joint 
tenants, although his wife can not have dower in the portion conveyed, 
the principle of exclusion does not extend to the wife of the grantee. 
As to her the right of dower attaches immediately upon the taking 
effect of the conveyance. 7 

Statutory modifications in the United States. 

6. In the United States very material changes have been made by 
statute in the common law relating to estates in joint tenancy. The 

i See ch. 12, jj 33. * Park, Dow. 39, 40 ; supra, ch. 12, \ 33. 

» Ch. 11, \ 32 ; ch. 12, \ 33. 

* Supra, ch. 12, § 33. For instances of a joint seizin rendered sole ab initio, so 
as to enable dower to attach, see ante, ch. 12, \\ 34, 35. 

' 6 See ante, \ 3. 

• Gilb. Uses, 404 ; Perk. sec. 337 ; Park, Dow/40 ; supra, ch. 12 \ 33. 
» Litt. I 44. 



324 THE LAW OF DOWER. [CH. 



XVI. 



right of survivorship is abolished in many of the States. In others, 
all estates limited to two or more persons are treated as tenancies in 
common, unless expressly declared to be joint tenancies by the deed 
or instrument creating them. An exception is commonly introduced 
in these statutes in respect of estates to joint trustees, and as to such 
estates the rule of the common law is preserved. The different stat- 
utory provisions upon this subject will be here noticed. 

7. As early as 1783 a statute was passed in Massachusetts abol- 
ishing the principle of survivorship among joint tenants, and enact- 
ing that on the death of a joint tenant, the joint estate of which he 
was seized should descend to his heirs. 1 This statute was repealed 
and substantially re-enacted by an act passed in 1785, which declared 
that all estates which had been or should be aliened to two or more 
persons, should be deemed tenancies in common, unless it appeared 
to be the manifest intent of the alienor that they should be held 
as joint estates. 2 The statute now in force in that State is as fol- 
lows : — 

Sec. 13. All conveyances and devises of lands, made to two or more persons, 
except as provided in the following section, shall be construed to create estates 
in common, and not in joint tenancy; unless it is expressed therein that the 
grantees or devisees shall take the lands jointly, or as joint tenants, or in joint 
tenancy, or to them and the survivor of them. 

Sec. 14. The preceding section shall not apply to mortgages, nor to devises 
or conveyances made in trust, or made to husband and wife, nor to any devise 
or conveyance in which it manifestly appears, from the tenor of the instrument, 
that it was intended to create an estate in joint tenancy. 3 

8. Similar enactments have been adopted in Michigan, 4 Wiscon- 
sin, 5 Indiana, 6 Mississippi, 7 and Minnesota. 8 In Vermont mortgages 
are not excepted from the operation of the statute. In other re- 
spects the statute of that State conforms to the Massachusetts act. 9 
In Rhode Island the right of survivorship is abolished except as to 

i Stat. 1783, ch. 52; Holbrook v. Finney, 4 Mass. 566, 568. 

* Stat. 1785, ch. 62; Holbrook v. Finney, 4 Mass. 566, 567. 

'Gen. Stat. Mass. (I860,) oh. 89, \\ 13, 14; Mass. Rev. Stat. (1836,) p. 406, 
\\ 10, 11; see Appleton <,. Boyd, 7 Mass. 131; Goodwin v. Richardson, 11 Mass. 
469 ; Miller v. Miller, 16 Mass. 59 ; Allen v. Holton, 20 Pick. 4-58 ; Putney v. Dres- 
ser, 2 Met. 583 ; Fowler ». Thayer, 4 Cush. Ill ; Stimpson v. Batterman, 5 Cush. 
153 ; Webster v. Vandeventer, 6 Gray, 428. 

< Comp. Stat. 1857, ch. 85, g 44- 6 Rev. Stat. 1858, ch. 83, ? 44. 

« Rev. Stat. 1852, ch. 23, g 7. • ' Rev. Code, 1857, ch. 36, g 4, art. 18. 

8 Comp. Stat. 1868, ch. 32. » Comp. Stat. 1850, ch. 62, g 2. 



CH. XVI.] ESTATES IN JOINT TENANCY, ETC. 325 

devises or conveyances where the instrument manifestly indicates 
an intention on the part of the devisor or grantor to create an estate 
in joint tenancy. 1 In Maine, where the conveyance is by mortgage, 
or in trust to two or more persons, with power to appoint a successor 
in case one dies, it is construed a joint tenancy unless the contrary 
appear. 2 

9. In the following States the right of survivorship is abrogated 
in all cases except where the estate is vested in executors or trustees : 
New York, 3 Illinois, 4 Delaware, 5 Missouri, 6 Arkansas, 7 and Califor- 
nia. 8 In Pennsylvania the exception is limited to the case of joint 
trustees. 9 In Alabama the statute is held by the courts not to apply 
to trust estates and estates in auter droit. 10 In New Hampshire, 11 
New Jersey, 12 Maryland, 13 and Iowa, 14 the exceptions contained in 
the Massachusetts statute do not exist. 

10. The jus aecrescendi is also abolished in the following States : 
Georgia, 15 Tennessee, 18 Texas, 17 Florida, 18 and North Carolina. 19 In 
Virginia and Kentucky it is also virtually abolished, as, in those 
States, the share of each cotenant, at his death, descends to his heir, 
or may be devised by will. An exception is made, however, as to 
estates held by executors or trustees, or where the conveyance di- 
rects that the survivor shall take the share of the one dying. 20 A 
further provision is in force in Kentucky which declares that where 
any real estate or slave is conveyed or devised to husband and wife, 
unless a right by survivorship is expressly provided for, there shall 



1 Rev. Stat. 1857, ch. 145, § 1 ; see Randall v. Phillips, 3 Mason, 378. 

2 Rev. Stat. 1857, ch. 73, g 7. s Rev. Stat. 4th ed. vol. ii. 135, <S 44. 
* Comp. Stat. 1858, vol. ii. 959. 5 Rev. Code, 1852, ch. 86, \ 1. 

« Rev. Stat, 1855, ch. 32, g 13. » Dig. of Stat. 1858, ch. 37, \ 9. 

s Wood, Dig. 1858, p. 104, \ 1, art. 380. 

9 Purdon's Dig. 8th ed. 1857, p. 458 ; see Bambaugh v. Bambaugh, 11 S. & R. 191. 

«> Code, 1852, \ 1312 ; Parsons s. Boyd, 20 Ala. 112. 

» Comp. Stat. 1853, ch. 135, \ 2. 

12 Nixon, Dig. 1855, p. 127, \ 34. By construction conveyances to husband and 
wife are excepted ; Den v. Hardenbergh, 5 Halst. 42. 

» Dorsey's Laws, let ed. p. 784, ch. 162; 1 Maryl. Code, p. 350, g 12; see Purdy 
v. Purdy, 3 Md. Ch: Decis. 547. 

" Code, 1851, ch. 78, I 1206 ; Revision of 1860, chap. 95, art. 1, \ 2214. 

" Cobb, New Dig. 1851, pp. 293, 545. " Code, 1858, \ 2010. 

» Oldham & White, Dig. 1859, p. 245, art. 1037. 

i 8 Thompson's Dig. 1847, p. 191, <S 20. « Rov. Code, 1854, ch. 43, § 2. 

*■ Va. Code, 1849, ch. 116, \\ 18, 19 ; see Deloney v. Hutcheson, 2 Rand. 183 ; Ky. 
Rev. Stat. 1852, ch. 80, jj 13, and ch. 47, \ 14; Stanton's Rev. vol. ii. ch. 80, \ 14. 



326 THE LAW OF DOWER. [CH. XVI. 

be no mutual right to the entirety by survivorship between them, 
but they shall take as tenants in common, and the respective moie- 
ties be subject to curtesy or dower, with all other incidents to such 
tenancy. 1 

11. It is held that joint tenancy, with the common law incidents 
of that estate, never existed in Ohio. In the case of Sergeant v. 
Steinberger, 2 the court thus refer to this principle : " It has more 
than once been decided by the Supreme Court on the circuit, that 
estates in joint tenancy do not exist under the laws of Ohio. The 
reasons which gave rise to this description of estate in England 
never existed with us. The jus accrescendi is not founded in prin- 
ciples of natural justice, nor in any reasons of policy applicable to 
our society or institutions. But, on the contrary, it is adverse to 
the understandings, habits and feelings of the people." This doc- 
trine has since been reaffirmed in the courts of that State. 3 The same 
principle has been settled in Connecticut. 4 And the right of survi- 
vorship is also disallowed in South Carolina. 5 

12. The impediment to dower created by the common law doctrine 
of survivorship does not exist, it would seem, in any case where the 
jus accrescendi is abolished either by express statute or as the result 
of judicial construction. This point was determined in Massachu- 
setts under the statutes of 1783 and 1785, 6 and the same ruling 
has been made in other States. 7 

Estates in coparcenary and common. 

13. Lands held in coparcenary and common are subject to dower. 
In the early case of Sutton v. Rolfe, 8 a claim for dower in lands held 

i 2 Rev. Stat. Ky. art. 4, eh. 47, \ 14 ; Stanton's Rev. vol. ii. p. 22. 

2 Sergeant v. Steinberger, 2 Ohio Rep. 305 ; see, also, White v. Sayre, Ibid. 110. 

3 Miles v. Fisher, 10 Ohio Rep. 1 ; Tabler v. Wiseman, 2 Ohio State Rep. 207. 

4 Phelps v. Jepson, 1 Root, 48. 

5 1 Brev. Dig. 435 ; see 1 Washb. Real Prop. pp. 406-409, and note ; 2 Greenl. 
Cruise, *364, note. 

6 Holbrook v. Finney, 4 Mass. 566. 

> Davis v. Logan, 9 Dana, 185; Weir v. Tate, 4 Ired. Eq. R. 264; Reed «. Ken- 
nedy, 2 Strobh. (S. C.) 67; James v. Rowan, 6 S. & M. 393; see 4 Kent, 37, note; 
1 Washb. Real Prop. 157, g 9 ; 1 Hilliard, Real Prop. 2d ed. 568, H 43, 45, and 
note ; McMahan v. Kimball, 3 Blaokf. R. 13, note (2.) In Hamblin v. Bank, &c., 
1 App. 66, the common law principle excluding dower from joint estates was re- 
cognized by the court. So in Mayburry i>. Brien, 15 Pet. 21. 

8 Sutton v. Rolfe, 3 Levinz, 84. 



CH. XVI.] ESTATES IN JOINT TENANCY, ETC. 327 

in common was resisted upon the ground that the wife of a tenant in 
common was not dowable until after partition made ; but the court 
overruled the objection, and gave judgment for the demandant. The 
doctrine of this case is now firmly settled, and the rule is that dower 
will be set off in common, unless during the lifetime of the husband 
his share has been set apart to him in severalty by partition, in which 
event the dower of the widow will be restricted to, and it is her right 
to have it assigned in the portion so set apart. 1 A voluntary parti- 
tion, if the division be fairly made, and no fraud is practiced on the 
wife, will have the same effect, in this particular, as a partition by 
virtue of legal proceedings. 2 But in proceedings in partition, unless 
the wife be made a party, it is necessary, in order to limit her claim 
to "endowment, that partition be actually made. Where she is not a 
party to the proceedings, she is not barred by a mere decree for 
partition which is not executed in her husband's lifetime. 3 

14. In Davis v. Logan, 4 certain parties made a parol partition of 
the estate which had descended to them from their ancestor. Lot 
eight, as designated in the plat of division, fell to John Logan, who 
was then married. He subsequently sold this lot to one Davis. 
Afterwards the whole estate was conveyed to William Logan, one 
of the heirs, in trust, to make sales. He conveyed lot eight, with 
certain other parcels, to the same Davis who had originally pur- 
chased from John, describing in the deed the boundaries of the entire 
tract, but without showing the particular location or extent of a por- 
tion of the parcels thus conveyed. After the death of John, it was 
held that his widow was entitled to dower out of lot eight in the tract 
sold to Davis. 

15. In Rank v. Hanna, 5 the husband was seized in fee of an un- 
divided interest in lands, which he sold, and the purchaser and his 
cotenant, in the husband's lifetime, made voluntary partition, and 
confirmed the same by deed. It was held that the widow might 

i Litt. sec. 44, 45; 1 Roll. Abr. 674; Perk. sec. 310; Park, Dow. 42, 153; Tud. 
Cas. 46 ; Potter v. Wheeler, 13 Mass. 504 ; Wilkinson v. Parish, 3 Paige, 653 ; Tot- 
ten v. Stuyvesant, 3 Edw. Ch. 500; Dolf v. Basset, 15 John. 21 ; Jackson v. Edwards, 
22 Wend. 498 ; Mosher v. Mosher, 32 Maine, 412 ; 1 Washb. Real Prop. 158, g 10 ; 
1 Hilliard, Real Prop. 180, \ 12. Mr. Dane refers to a case in which dower was 
allowed in jiff w °' tne g reat sheep pasture in Nantucket. 4 Dane's Abr. 674. 

» 1 Hilliard, Real Prop. 180, \ 12 ; Totten v. Stuyvesant, 3 Edw. Ch. 500. But 
Bee Rank v. Hanna, 6 Ind. 20 ; post, \ 15. 

• Wilkinson v. Parish, 3 Paige, 653. * Davis v. Logan, 9 Dana, 185. 

* Rank v. Hanna, 6 Ind. 20. 



828 THE LAW OF DOWER. [CH. XVI. 

have her dower assigned out of the whole undivided estate as if no 
partition had been made. 

16. It is held in New Jersey that a parol partition will not conclude 
the wife, even though made under such circumstances as will bind 
the husband ; nor is the question affected by the fact that possession 
is taken in severalty under the partition, and maintained for a series 
of years. The widow is, notwithstanding, dowable of her husband's 
proportion of the whole land. 1 

17. If, after partition made of lands held in coparcenary, one of 
the coparceners be evicted by title paramount, he may recover a pro- 
portionate share of the premises set apart to the husband, discharged 
of the claim of dower. In such case the common estate is dimin- 
ished by the eviction, and as the estate of the coparcener who re- 
covers pro rata has relation" to the time of the death of the ancestor, 
it follows that to the extent of his recovery the right of dower is 
overreached and defeated. 2 



Effect of sale in partition. 

18. The statutes of most, if not all the States, provide for the 
sale of lands held in common, where, upon proceedings for partition, 
it is ascertained that a division can not be made without serious det- 
riment to the estate. In such cases the money arising from the sale 
is brought into court, and distributed to the several tenants in com- 
mon in proportion to their respective interests in the common prop- 
erty. From these statute regulations has sprung a question of great 
interest and importance, namely, whether a sale made in conformity 
thereto operates to divest the contingent right of dower of the wife 
of a cotenant, and to pass the entire estate absolutely to the pur- 
chaser ; and if so, whether, for that reason, it is proper that the court 
under whose direction the sale is made, should require a portion of 
the husband's share of the proceeds of the sale to be invested for 
her benefit in case she should survive him, and her right thus become 
absolute. 

19. Upon the first point, Vice-Chancellor McCoun, of New York, 



i Lloyd v. Conover, 1 Dutch. 47; Woodhull v. Longstreet, 3 Harr. 405. See, also, 
Lee v. Lindell, 22 Misso. 202, 206. 
3 Perk. see. 310; Park, Dow. 153. 



CH. XVI.] ESTATES IN JOINT TENANCY, ETC. 329 

has twice expressed the opinion that a sale so made does not divest 
the inchoate right of dower, 1 and one ground upon which he bases 
this conclusion is, that the courts possess no power to compel the 
wife to accept a provision in money in lieu of her interest in, and 
consequent right to, the enjoyment of the land itself. "Where an 
actual partition is made," he observes, "it has not the effect of 
divesting the right, for the right remains unimpaired, though it 
attaches itself to the land set apart to the husband in severalty. 
But where a sale, instead of an actual partition is found to be neces- 
sary, it is supposed by the complainant's counsel that the right or 
interest of the wife, as well as the title of the husband, passes, and 
that the purchaser will hold the land free of dower. The statute in 
relation to partition proceedings has not so declared in terms ; and 
if such had been the intention of the legislature, it appears to me 
there would have been some provision in the law for securing the 
fund or proceeds belonging to the husband, or some portion of it, at 
least, for the benefit of the wife in the event of her survivorship; but 
no such provision is made. Where there is an estate in dower, or 
by the curtesy, the statute is explicit in its directions, and the powers 
of the court are declared. (2 R. S. 325, § 50 to 55.) How can these 
provisions be applied to the case of a mere contingent or inchoate 
right? The practical effect, as it seems to me, would be rather- 
ludicrous ; since it would be converting a wife into a widow during 
the husband's life. Then, has the court power, independently of 
any statutory authority, to deal with the proceeds of the husband's 
share, and to compel him to make a settlement upon his wife, in the 
event of her surviving him, in lieu of her dower in the lands sold ? 
Cases do frequently occur where the Court of Chancery has jurisdic- 
tion to control a husband in the exercise of his legal rights in respect 
to the wife's property until he shall make a settlement upon her ; 
but in a case like the present, the control must be had over the wife, 
to compel her to accept a provision in money instead of the use of 
the land, which the law leaves to her own free choice. Here lies the 
difficulty; as the law stands, the court can not compel her to accept 
a settlement in lieu of dower, though it should undertake to coerce 
the husband into a settlement upon her. The statute in relation to 
dower expressly gives the wife an election in many cases, and the 

1 Matthews v. Matthews, 1 Edw. Ch. R. 565 ; Jackson v. Edwards, 7 Paige, 386, 
390, 391. 



330 THE LAW OF DOWER. [CH. XVI. 

sixteenth section (1 R. S. 742) is more explicit, that no act or deed, 
or conveyance, executed or performed by the husband without the 
assent of his wife evidenced by her acknowledgment thereof in the 
manner required by law to pass the estates of married women, and 
no judgment or decree, confessed by, or recovered against him, shall 
prejudice the right of his wife to her dower, or preclude her from the 
recovery thereof. How, then, can the courts say that the act of the 
husband in subjecting his wife to a partition suit, or that a judgment 
or decree rendered therein without her assent evidenced in the man- 
ner pointed out, is to have the eifect of barring her right ; or that 
she shall accept a pecuniary or any other provision in lieu of her 
dower? Her assent appears to be absolutely necessary; and if she 
is competent in law, and willing to give such an assent, let her give 
it by uniting with her husband, in a release duly executed and ac- 
knowledged. It is, after all, a conventional matter between them, 
whether she has been made a party to the suit or not." 1 

20. Upon appeal, the Chancellor (Walworth) was of a different 
opinion. "That it was the intention of the revisers," he observed, 
after referring to certain amendments to the act relating to parti- 
tion, "to enable the courts to give to a purchaser under the judgment 
or decree, when a sale of the premises was found to be necessary, a 
perfect title as against every future or contingent interest in any 
undivided share of the property, is evident from the note which they 
appended to the new provisions introduced by them in relation to 
incumbrances on such shares. Indeed, without such a power, it 
would be very difficult to make the partition equal in the case of a 
sale ; as a contingent right of dower or other defect in the title as to 
one share in the property must, upon a sale, necessarily diminish the 
amount bid for all the shares collectively. The same difficulty, there- 
fore, would exist in determining the value of a wife's inchoate right 
of dower in the undivided share of her husband, for the purpose of 
dividing the proceeds of the sale among the different tenants in com- 
mon according to equity, as is apprehended by the counsel to exist 
in makiDg a suitable provision for this contingent right of the wife, 
out of the whole of the proceeds of her husband's share of the sale, 
if she chose to insist upon her right to such a provision. And, in 
addition to that, the fact that the title in the hands of the purchaser 

i Jackson v. Edwards, 7 Paige, 391, 392. See, also, the reasoning of the Vice- 
Chancellor in Matthews v. Matthews, cited supra. 



CH. XVI ] ESTATES IN JOINT TENANCY, ETC. 331 

would be incumbered with a contingent right of dower of a feme 
covert, in an undivided share of the premises, which might subject 
the owner to future expense and litigation, would diminish the value 
of the property in the hands of the purchaser to more than double 
the actual value of such contingent right. I can not believe that the 
legislature intended to leave this contingent interest, or inchoate 
right of dower of the wife of a tenant in common, an incumbrance 
upon the title in the hands of a purchaser, any more than that it 
was intended that a similar contingent interest of the husband in the 
wife's property should remain an incumbrance thereon. Although 
the husband has a present interest in his wife's real estate from the 
time of the marriage, for the joint lives of himself and wife, he is not 
even a tenant by the curtesy initiate, so as to give him an estate for 
his own life in the premises, until the birth of issue. And I believe 
it has never been doubted that a sale in a partition suit, to which he 
was a party, either under the act of 1813 or under the provisions of 
the revised statutes, would have the effect, not only to divest his 
present estate in the property during the joint lives of both, but also 
to bar his contingent interest in the property for the remainder of 
his life, after the death of his wife, in case he should afterwards have 
issue and survive # her. Yet I have not been able to find any pro- 
vision in the revised statutes which can reach such a case which is 
not equally applicable to the wife's inchoate right of dower in the 
husband's estate." 1 

21. The Chancellor also referred to the provisions of the revised 
statutes to show that it must have been the intention of the legisla- 
ture to bar all future and contingent rights in the premises by a sale 
in partition, so as to give a perfect title to the purchaser : " The 
fifth section of the title of the revised statutes relative to the parti- 
tion of lands, (2 R. S. 318,)" he said, "requires the" plaintiff, in his 
petition, to set forth the rights and titles of all persons interested in 
the premises, so far as is known to him, including the interest of 
any tenant for years, for life, by the curtesy, or in dower, and the 
persons entitled to the reversion, remainder or inheritance after the 
termination of any particular estate therein, and every person who, 
by any contingency contained in any devise, grant, or otherwise, may 
become entitled to any beneficial interest in the premises. This lan- 
guage is certainly broad enough to include the contingent right of 

> Pages 406-8. 



332 THE LAW OF DOWER. [CH. XVI. 

dower of the wife of one of the tenants in common, as well as other 
future or contingent interests. And the next section authorizes 
every person having such an interest as is mentioned in the fifth 
section, whether the same is in possession or otherwise, and every 
person entitled to dower in such premises, if the same has not been 
admeasured, to be made a party to the suit. The special provision 
in relation to dower was inserted in this section to reach the case of 
a dowress who was entitled to an estate as tenant in dower in the 
whole premises ; as the Supreme Court had decided that the pro- 
visions of the revised law of 1813 did not reach the case of a dow- 
ress whose husband was not a tenant in common of an undivided 
share of the estate. (See Coles v. Coles, 15 John. Eep. 319.) The 
language of the seventh, tenth, eleventh, twelfth and thirteenth sec- 
tions of this title as originally passed, is equally comprehensive 
with the fifth ; and show that it was the intention of the revisers and 
of the legislature that the owner of every future and contingent 
interest, whether known or unknown, as well as the owners of the 
present interests, should be made parties to the suit ; and that their 
several rights and interests should be ascertained and settled by the 
court before a judgment or decree for a partition or a sale of the 
premises should be made. By the 61st section, the conveyance 
which is directed to be executed by the commissioners, under a judg- 
ment for sale of the premises, is declared to be a bar both in law and 
equity against all persons interested in the premises in any way, 
who shall have been named as parties in the proceedings : and as 
against all such persons or parties as were unknown, if notice of the 
application for partition shall have been given by publication as 
directed by the statute ; and as against all other persons claiming 
from such parties, or either of them. And by the 84th section, the 
same force and* effect is given to a master's deed, under a sale by 
virtue of a decree of this court. I am, therefore, compelled to de- 
clare that the opinion of the Vice-Chancellor in this cause, and in 
the case of Matthews v. Matthews, (1 Edw. Ch. Rep. 565,) as to the 
effect of a sale in partition upon the inchoate right of dower of the 
wife of a tenant in common, who has been made a party to the suit 
in conjunction with her husband, is erroneous; and that a purchaser' 
under the judgment or decree will be protected against any future 
claim on her part, both in equity and at law." 1 

i Pages 410, 411. 



CH. XVI.] ESTATES IN JOINT TENANCY, ETC. 333 

22. The Chancellor also held, contrary to the opinion expressed 
by the Vice- Chancellor, that the court was authorized, and indeed 
required, to ascertain the present value of the wife's contingent right 
of dower in the husband's share of the proceeds of the sale, and to 
direct it to be invested for her benefit. This, he appeared to think, 
was the necessary result of his conclusion, that by the sale, the lands 
became discharged of her dower. His views upon this point are thus 
stated : " If, in either case, there should be such a disagreement be- 
tween the husband and the wife as to render it necessary for the 
court, in providing for- the legal rights of each, to settle their pro- 
portion of the proceeds of the sale, and if there was no other way to 
protect their rights than to ascertain the present value of the con- 
tingent interest of the husband or wife in such proceeds, it would be 
much easier to ascertain the present value of the wife's contingent 
right of dower than to ascertain the value of the husband's chance 
of becoming a tenant by the curtesy, not only by surviving his wife, 
but also by becoming the father of a child by her. Indeed, the 
annuity tables have furnished the court with the means of ascertain- 
ing the probable value of the wife's contingent right of dower during 
the life of the husband. These tables show the value of annuities 
which depend, not only upon the continuance of single lives of dif- . 
ferent ages, but upon the continuance of two or more joint lives. 
The proper rule for computing the present value of the wife's con- 
tingent right of dower, during the life of the .husband, is to ascertain 
the present value of an annuity for her life, the value of a similar 
annuity depending upon the joint lives of herself and her husband; 
and the difference between those two sums will be the present value 
of her contingent right of dower. (McKean's Pr. L. Tables, 23, § 4; 
Hendry's Ann. Tables, 87, Prob. 4.) Should it be necessary, in the 
case of an infant, or an adult wife, for the court to protect her con- 
tingent right of dower upon a sale under a decree in partition, where 
the value of the husband's undivided share of the estate was such as 
to render it proper, the present value of that contingent right may 
be ascertained in that manner. And the amount may be invested in 
the trust company, or in a savings' bank, in the name of the regis- 
ter, to accumulate for her benefit during the joint lives of herself and 
her husband ; so that the whole accumulated fund may then be paid 
over to her, or her personal representative, at that time, in full of 
her share in the proceeds of the sale. Her rights may also be effect- 
ually protected by directing the whole proceeds of the husband's 



334 THE LAW OF DOWER. [CH. XVI. 

share to be paid to him, upon his giving security to the register or 
clerk, that the interest or income of one third of such proceeds shall 
be paid to his wife after his death, during the term of her natural 
life, if she survives him." 

23. "Although," he adds,' "the revised statutes have given spe- 
cific directions as to the mode of ascertaining and securing the shares 
of the proceeds belonging to the tenants in dower and by the curtesy, 
and other tenants for life having present estates in possession in the 
premises, there is still a large class of future estates, both vested and 
contingent, in lands which may be sold under -judgments and decrees 
in partition, that are not embraced in those specific directions. In 
all such cases it will be the duty of the court to ascertain and settle 
the value of such future estates and interests upon just and equitable 
principles, and to make such order as may be necessary for the pro- 
tection of the shares of the fund which may belong to the persons 
who then are or may thereafter be, the owners of such future estates 
or interests, in analogy to the express provisions of the statute rela- 
tive to the shares of parties who have present estates for life in pos- 
session. I can not, therefore, concur in the opinion of the Vice- 
Chancellor, that the neglect of the legislature to make a specific 
provision for the ascertainment of the value of the wife's contingent 
right of dower, and to secure the same for her benefit, is any evi- 
dence that it was intended to leave that, or any other future or con- 
tingent interest of a party to the suit, as an incumbrance upon the 
title of a purchaser under the judgment or decree." 1 

In conformity to these views an order was made requiring the 
wife's contingent interest in the fund arising from the sale, to be 
secured to her. 2 The case, however, was subsequently carried to the 
Court of Errors, and was finally decided on other grounds, the mem- 
bers of that court differing upon the question as to whether the 
inchoate right of dower was divested by the sale. 3 

24. In Wilkinson v. Parish, 4 pending proceedings for partition, 
one of the parties died. The Chancellor held that in order to make 
a perfect title to a purchaser, in case it became necessary to sell the 
premises, the widow of the deceased tenant in common must be made 
a party. "The widow," he said, "does not take her dower as the 



i Pages 408-10. » g ee page 413< 

3 Jackson v. Edwards, 22 Wend. 498. 
* Wilkinson v. Parish, 3 Paige, 653. 



CH. XVI.] ESTATES IN JOINT TENANCY, ETC. 335 

representative of the husband, or by descent from him. She takes 
it by a title which is prior in point of time, to the commencement of 
this suit, and which can not be affected by any act of the husband, 
or by any proceedings in a suit to which she was not a party. By 
the marriage, the wife becomes entitled to a life estate in one third 
of the real estate of the husband, after his death, provided she sur- 
vives him. She is therefore in the situation of a contingent remain- 
der-man whose estate becomes vested by the death of a party to the 
suit upon whose death without issue the contingency depends. . . . 
In the case of Wilde v. Jenkins, which came before this court in 
March last, upon an application to overrule, as frivolous, a demurrer 
of the widow to a bill of revivor filed against her, it was decided 
that the wife's right to dower could not be affected by a suit against 
her husband to which she was not a party." So in Van Gelder v. 
Post, 1 it was held by the Vice-Chancellor that a sale in proceedings 
at law for partition, where the wife is not a party, will not bar her 
right of dower. "It appears to me impossible," he said, "that such 
a proceeding can bar her dower, any more than a simple alienation 
by the husband would have done. It is true that the statute declares 
the sale and conveyance by the commissioners to be a bar against 
the owners and all persons claiming by, from, or under them, or any 
or either of them ; 2 yet it could not have been intended to affect a 
wife's right to dower — who, according to my understanding of the 
law as it exists, and always has existed in this State, can not be 
deprived of this right except by a voluntary act of her own." 3 

25. The following case, bearing, in some degree, upon this sub- 
ject, was determined in Maryland: The wife of one of the joint 
owners of lands united with her husband as complainant in a bill for 
partition. The property was sold under a decree upon such bill. It 
was held that the purchaser took the lands discharged of dower. 
"It is by no means certain," the court remarked, "even prior to the 
act of 1839, ch. 23, a sale under such a decree for partition would 
not bar a 'potential ' or inchoate right of dower in the wife of one of 
the joint owners of the land. But conceding that such a sale would 
not have barred her right to dower in the property after her hus- 

i Van Gelder v. Post, 2 Edw. Ch. 577. 

2 1 Kent & Radcliff's ed. Laws, 542. 

8 Accord. Lambert on Dower, 143. For the present New York statute regulating 
sales in partition where there is an inchoate dower interest in the premises, see 
post, \ 30. 



336 THE LAW OF DOWEB. [CH. XVI. 

band's decease, if the sale had taken place before the act, there can 
be no doubt that under like circumstances occurring since the year 
1839, she can not demand dower of the purchaser, inasmuch as the 
act referred to provides that a decree may be passed directing a sale 
of land, or real estate held jointly, or in common by two or more 
persons, and that a sale under such a decree shall pass to the pur- 
chaser all the interest and estate of all persons who are parties to 
the suit, either complainants or defendants; and also further pro- 
vides that 'if any feme covert, by marriage with one of the joint 
tenants, or tenants in common, shall have acquired a potential right 
of dower in part of the estate to be sold, such right of dower is hereby 
expressly declared to be within the power of the court or judge to 
decree the sale, she being made a party to, the proceedings, either 
complainant, or defendant.' . . . When the sale was made and rati- 
fied, any inchoate or possible dower right of Mrs. Warren in the 
land, to which she may previously have been entitled, was trans- 
ferred to the proceeds of the sale, out of which the court had full 
power to provide for any legitimate claim on account of dower. 
And if the proceeds were not correctly distributed by the court, the 
purchaser would not be held responsible for an error of that kind." 1 

26. In Missouri it has been held that a widow's dower is divested 
by a sale in partition during the coverture, although she is not joined 
with her husband as a party. "It may be," the court said, "that 
as between the husband and wife the law should haVe provided some 
security for her dower out of the proceeds of the sale, but that such 
failure should be visited on the purchaser, would be a great hard- 
ship. The omission to make it could, on no principle, vary the 
nature of the proceeding, and make that of no force which was 
before binding." 2 

27. This question was also recently considered in Ohio. A sale 
had been made on proceedings in partition, and after the death of 
one of the cotenants, his widow instituted proceedings for dower 
against the grantee of the purchaser at the sale. The statute regu- 
lating the partition of lands in Ohio, in force at the time the sale 
was made, differed materially from the New York statute before 
referred to. The latter act, as has been seen, required all persons 



i Warren .v. Twilley, 10 Maryl. 39. 

» Lee v. Lindell, 22 Miaso. 202, Leonard, J., dissenting; S. P. Sire t>. City of St. 
Louis, Ibid. 206. 



CH. XVI.] ESTATES IN JOINT TENANCY, ETC. 337 

having any contingent interest in the premises to be made parties to 
the proceeding. 1 The Ohio statute, on the other hand, simply directed 
that each joint tenant, coparcener, or tenant in common, and any 
widow entitled to dower in the lands should be made defendants to 
the petition. 2 The statute did not require, nor in the case referred 
to had the wife been made a party to the proceeding in which the 
sale was made. The court, nevertheless, held that the inchoate right 
of dower was extinguished by the sale. 3 

28. "The question before us," the court observed, "is one of legis- 
lative intention. Did the General Assembly, in providing for the sale 
of estates in proceedings in partition, intend that the entire estate 
should pass to the purchaser divested of a wife's inchoate right of 
dower? In seeking for the intention of the legislature on this point, 
and in the absence of any clear and decisive expression of that inten- 
tion in the language of the statute, it seems to us that the maxim, 
argumentum ab inconvenienti plurimum valet in lege, very properly 
and forcibly applies ; for, ' if the words used by the legislature have 
a necessary meaning, it will be the duty of the court to construe the 
clause accordingly, whatever may be the inconvenience of such a 
course. But unless it is very clear that violence would be done to 
the language of the act by adopting any other construction, any 
great inconvenience which might result from that suggested may 
certainly afford fair ground for supposing that it could not be what 
was contemplated by the legislature, and will warrant the court in 
looking for some other interpretation.' Broom's Legal Maxims, 140, 
141. 

"To apply this maxim to the case before us, let us suppose two 
coparceners, each the owner of an equal undivided half of an estate 
inherited from a common ancestor. One of them has a wife; the 
other is unmarried. One of them petitions for partition of the com- 
mon estate, which is found to be incapable of actual partition, and is 
ordered to be sold. It is understood to be the settled law that the 
inchoate right of dower of the wife is not divested by the sale. The 
consequence is, inevitably, that the estate must be sold for much less 
than it would otherwise have brought. Yet, on the distribution of 



' Vide opinion of Walworth, Chancellor, cited ante, \\ 20, 21. 

2 Act of February 17, 1831, 29 Ohio Laws, 254; Swan's Stat. ed. 1841, p. 613, 
sections 2, 13. 

3 Weaver v. Gregg, 6 Ohio St. R. 547. 

vol. i, » 22 



388 THE LAW OF DOWEE. [CH. XVI. 

the proceeds of the sale, the husband comes in for an equal share; 
and the loss consequent on the existence of the contingent incum- 
brance, falls alike on the unmarried and married coparcener. This 
is a necessary result, and it is not only inconvenient, but grossly 
unjust ; too inconvenient and too unjust to permit us to suppose it 
to have entered into the intention of the legislature. 

"We are of opinion, therefore, that it was the intention of the 
legislature, by a sale in partition, to divest the wife of her inchoate 
right of dower. In so holding, we do not subject this right at all to 
the will or caprice of the husband. The sale is the act of the law, 
designed to do justice to joint owners, and render estates available, 
and put forth only when, from the fact that the estate is incapable 
of actual partition, the necessities of the case require it. The legis- 
lature has deemed it more important to the public interest to render 
estates available to their owners without sacrifice of their value, by 
a sale, in case of necessity, than to preserve in all cases whatsoever, 
the wife's remote and contingent interest, at the expense of parties 
on whom she can have no proper claim. 

" On the whole," they add, " our view of the question is this : The 
right of dower in the wife subsists in virtue of the seizin of the hus- 
band ; and this right is always subject to any incumbrance, infirmity 
or incident, which the law attaches to that seizin, either at the time 
of the marriage, or at the time the husband became seized. A liabil- 
ity to be divested by a sale in partition, is an incident which the law 
affixes to the seizin of all joint estates ; and the inchoate right of the 
wife is subject to this incident. And when the law steps in and 
divests the husband of his seizin, and turns the realty into person- 
alty, she is, by the act and policy of the law, remitted, in lieu of her 
inchoate right of dower in the realty, to her inchoate right to a 
distributive share of the personalty into which it has been trans- 
muted." 

29. This reasoning addresses itself to the understanding with great 
force and cogency, and tends strongly to support the conclusion to 
which the court arrived. In the case supposed by the court, the 
injury resulting from a sa.le, subject to the contingent right of 
dower of the wife of one of the cotenants, is very evident. At the 
same time it does not seem perfectly clear that, from these ad- 
mitted premises, a general rule should be deduced which is to be 
made applicable to all cases alike. In many cases the inequality 
suggested by the court has no existence in fact. The argument, ah 



CH. XVI.] ESTATES IN JOINT TENANCY, ETC. 339 

inoonvenienti, applies with much force, where a part, only, of the 
coparceners are married, but in the view taken by the court, this 
maxim would seem to have no application, if the parties, in this 
respect, all stand upon an equal footing. The mind instinctively 
feels that it is a hardship upon the wife to deprive her of her right 
of dower against her consent, and without any fault on her part, 
even though the deprivation be the result of a purpose to do justice 
to another. Nor can we entirely divest ourselves of the impression 
that thereby the rights of one person are sacrificed, in order that 
those of another — in no degree, perhaps, more meritorious — may be 
protected and preserved. Where there is no inequality in respect 
of the coverture of the parties, the rule divesting the wife of her 
dower would seem to operate still more harshly. And it may be 
remarked that instances may not unfrequently occur in practice 
where a cotenant would be subjected to the consequences of a de- 
preciation produced by a sale of the common property subject to an 
inchoate right of dower, and where it would hardly be claimed that 
such right was impaired by the sale. For example, if two coparce- 
ners, one of them married and the other unmarried, should unite in 
a mortgage of their lands, the wife not joining, and the premises 
were afterwards brought to sale by proceedings in foreclosure, the 
interest of the unmarried coparcener would be affected by the con- 
tingent incumbrance precisely in the same manner as in the case 
supposed by the court in Weaver v. Gregg. So if the joint estate 
were taken in execution and sold for the satisfaction of a joint debt. 
The liability to depreciation for this cause seems an inseparable 
incident of estates held in coparcenary or common. 

30. It is manifest, however, that in proceedings in partition, the 
interests of all parties would be promoted by a sale free from the 
incumbrance of dower. An uncertain and contingent interest of this 
character would undoubtedly affect the market price of the property 
to an extent greatly disproportioned to the actual value of that inter- 
est. This consequence may be avoided, and the rights of all parties 
preserved, by extending to the wife, in all cases where she desires it, 
the protection suggested by the chancellor in Jackson v. Edwards. 1 
Upon this point, the court, in Weaver v. Gregg, were not called upon 
to make any order, as that case was a simple proceeding for dower 
in the lands, instituted at a period long subsequent to the sale and 

i Supra, \\ 22, 23. 



340 THE LAW OP DOWER. [CH. XVI. 

the distribution of its proceeds. The opinion of the court, however, 
contains what may be construed to be an intimation against the pro- 
priety and legality of the course pointed out by Chancellor Walworth. 
After observing that the statute under which the sale was made 
directed that the proceeds of the sale should be distributed by order 
of the court in which the proceeding was had, to and among the 
several parties entitled to receive the same, in lieu of their respective 
parts and proportions of the estate or estates, according to their just 
rights and proportions, they add: "Now, in .case of a sale as pro- 
vided for in this statute, where the husband is the owner of the fee, 
and the wife has but a contingent right of dower, how, and to whom, 
is this distribution of the proceeds of the sale of the estate made ? 
Always, in practice, so far as we know, it is made to the husband, 
and to him alone. And we think properly; for he is the sole repre- 
sentative of the estate. She has a contingent possibility of interest 
in it, which may be released, but no property, no actual interest in 
it which is the subject of grant or assignment. Miller's Adminis- 
trator v. Woodson, 14 Ohio Rep. 518. Nor is the value of her pos- 
sible and contingent interest capable of estimate with any degree of 
accuracy. Moore v. Mayor, etc of New York, 4 Selden, 110. And, 
on this point, we may consider the rule of distribution as settled by 
the universal and unvarying practice." 1 This reasoning would seem 
to apply, with equal propriety, to any contingent interest. A con- 
tingent remainder is no more the subject of grant than a contingent 
l'ight of dower. And its value is equally incapable of accurate esti- 
mate. But it is hardly to be supposed that for this reason a court 
of equity, upon a sale of real property under its direction, would 
wholly disregard an interest of that character. The present value 
of a contingent right of dower would seem to be just as capable of 
ascertainment as the present value of the absolute right after the 
death of the husband. In either case the estimate depends mainly 
upon results to be derived from tables of mortality, and in either 
case, also, these results are equally problematical. 

31. That the difficulties attending an estimate of the present value 
of an inchoate right of dower are not regarded as insuperable, is evi- 

1 In accordance with the opinion here expressed, it was held by the Superior 
Court of Cincinnati (General Term, Oct. 1862) that, upon a sale of lands in parti- 
tion, the inchoate dower interest of the wife of one of the joint owners is not only 
divested, hut that she is not entitled to have any portion of the fund invested for 
her benefit. Pullen v. Shillito, opinion per Hoadley, J. 



CH. XVI.J ESTATES IN JOINT TENANCY, ETC. 341 

dent from the fact that in several of the States express provision is 
made by statute for the protection of the interest of the wife in cases 
of sales in partition during the lifetime of the husband. The New 
York statute of 1840 is as follows : — 

In all cases of sales under judgment or decree in partition, where it shall 
appear that any married woman has an inchoate dower right in any of the lands 
divided, or sold, or that any person has any vested or contingent future right or 
estate in such lands, it shall be the duty of the court under whose judgment or 
decree such sale is made, to ascertain and settle the proportional value of such 
inchoate, contingent, or vested right or estate, according to the principles of 
law applicable to annuities and survivorship, and to direct such proportion of 
the proceeds of the sale to be invested, secured, or paid over in such manner as 
shall be judged best to secure and protect the rights and interests of the parties. 1 

The same act also provides for the release, by any married woman, 
to her husband, of her interest in the fund, and upon such release 
being made, directs that her share of the proceeds of the sale shall 
be paid to her husband. And such release, and also the payment, 
investment, or otherwise securing any share of the proceeds of the 
sale, according to the first section of the act, operates as a bar, both 
in law and equity, against any such right, estate, or claim. 2 

32. In Bartlett v. Van Zandt, 3 which arose under the foregoing 
act, the decree was so framed as to ascertain at once and definitely, 
the whole value of the dower interest of the wife of one of the par- 
ties. It directed the value of the inchoate right to be settled by a 
master, on the principle of life annuities, and that the amount thus 
ascertained should be paid into court from the proceeds of the sale, 
to be invested under the direction of the court. The income arising 
from this sum was to be paid to the assignees of the husband's inter- 
est, during the life of the husband,* and after his death the principal 
was to be paid as the court should direct. The husband survived 
the wife. It was held that the value thus ascertained represented 
the present worth of the wife's dower right, and that the sum paid 
or reserved on account thereof, became her absolute property with- 
out condition or contingency; that the sale operated as a statutory 

i Laws of 1840, ch. 177, J 1; 3 Rev. Stat, N. Y. 5th ed. p. 614, \ 65. 

2 gg 2, 3; 3 Rev. Stat. 5th ed. p. 614, \\ 66-68. 

a Bartlett v. Van Zandt, 4 Sandf. Ch. 396. 

4 Compare the statement of the case, (p. 397,) where it is said the income was to 
be paid to the assignees during the life of the wife, with the opinion of the court, 
(p. 399,) where it is stated, no doubt correctly, that the assignees were to receive 
the income during the life of the husband. 



342 THE LAW OF DOWER. [CH. XVI. 

conversion, impressing upon the sum payable to the wife for her dower 
interest, the character of personalty, and that upon her death it 
went to her husband. 

Statutes similar to that of New York have been adopted in Min- 
nesota and Virginia. 1 

33. In England, when it became established that estates in joint 
tenancy were not subject to dower, one of the modes devised by 
conveyancers to intercept that right, was to convey lands in such 
manner as to create, technically, an estate in joint tenancy in the 
husband. 2 If it be once settled that sales in partition completely 
extinguish the wife's right of dower, it will not be difficult, in the 
transmission of titles to real property, to frame conveyances with 
reference to this doctrine, and in a great measure practically nullify 
existing statutes securing the right of dower. If the courts, in the 
absence of legislation upon the subject, possess no power to protect 
the inchoate interest of the wife, a due regard to her rights would 
seem to require a prompt exercise of the legislative authority in all 
those States in which provision has not already been made for the 
protection of that interest in cases of the character here referred to. 

i Stat. Minn. (1858,) p. 602, gg 36, 37. See, also, p. 599, g 12. Code of Va. (1849,) 
p. 474, g 3. The Maryland Code also provides for the sale of the lands of joint 
owners free from dower ; vol. i. p. 78, g 33 ; and see ante, g 25. 

For a discussion of the question relating to the right of the wife to have her 
inchoate dower interest protected where lands are sold in the husband's lifetime 
under proceedings in foreclosure, or to satisfy a vendor's lien, see ch. 23, gg 26-30, 
and ch. 25, g 7. 

* Park, Dow. 83. 



CHAPTER XVII. 



DOWER IN ESTATES NOT OF INHERITANCE. 



§ 1-5. Rule at common law as to es- 
tates for life. 

6-9. Rule in the United States. 



\ 10-18. Dower in estates for years. 

19. In estates at will. 

20, 21. In wrongful estates. 



At common law estates for life not subject to dower. 

1. An estate for life, although possessing all the dignity of a free- 
hold estate, is, nevertheless, by the rules of the common law, not 
subject to dower. It is obvious that dower does not attach upon an 
estate which the husband holds for his own life, as the right of dower 
is but a continuation of the husband's estate; 1 and although the same 
reason for excluding dower does not exist where an estate is held 
•pur autre vie, yet the common law, for reasons which will be here- 
after stated, makes no distinction, and rigorously applies the same 
rule in both classes of cases. 2 

2. "By common speech," says Littleton, "he which holdeth for 
term of his own life, is called tenant for term of his life, and he which 
holdeth for term of another's life, is called tenant for term of another 
man's life." 3 Upon which Lord Coke has these observations: "Now 
it is to be understood that if the lessee in that case dieth, living 
cestui que vie, (that is, he for whose life the lease was made,) he that 
first entreth shall hold the land during that other man's life, and he 
that so entreth is within Littleton's words, viz. tenant pur autre vie, 
and shall be punished for waste as tenant pur autre vie, and subject 
to the payment of the rent reserved, and is in law called an occu- 



i Park, Dow. 48, 49; 1 Greenl. Cruise, 181, § 17. And see Exton v. St. John, 
Finch, 368. 

1 Ibid.; Bracton, 92, b.; Plow. 556; Bowles v. Poore, 1 Bulstr. 135; Low v. Bur- 
ron, 3 P. Wms. 262; see 1 Ves. Sr. 303. 

• Litt. sec. 56. 

(343) 



344 THE LAW OF DOWER. [CH. XVII. 

pant, (occupans,) because his title is by his first occupation. In like 
manner it is of an estate created by law, for if a tenant by the cur- 
tesie or tenant in dower grant over his or her estate, and the grantee 
dieth, there shall be an occupans." 1 This rule, which was limited to 
corporeal hereditaments, was founded upon the idea that the estate, 
upon the death of the grantee, could not go to the heir, for the reason 
that there were no words of inheritance ; nor to the execntor, because 
it was a freehold estate. For ihese reasons it was supposed the 
estate became derelict, and that the person who first entered might 
lawfully retain possession, and would become vested with all the 
rights and subject to all the obligations and liabilities of the 
grantee. 2 Upon such an estate, so long as this doctrine was recog- 
nized, it is manifest no right of dower could attach. 

3. The intrinsic injustice of such a doctrine is very palpable ; and 
it is also apparent that it must have been the fruitful source of much 
mischievous controversy, and would necessarily call for modification 
at the hands of the legislative power. Accordingly, by the statute 
of 29 Car. II., chapter 3, sec. 12, it was enacted "that any estate 
pur autre vie, shall be devisable by will, &c, and if no such devise 
thereof be made, the same shall be chargeable in the hands of the 
heir, if it shall come to him by reason of a special occupancy, as 
assets by descent, as in case of lands in fee simple. And in case 
there be no special occupant thereof, it shall go to the executors or 
administrators of the party that had the estate thereof by virtue of 
the grant, and shall be assets in their hands." A statute upon the 
same subject was also passed in the 14 of Geo. II. which, after re- 
citing the 29 Car. II., and that doubts had arisen, where no devise 
had been made of such estates, to whom the surplus remaining after 
the payment of debts, belonged, enacted as follows: "That such 
estates pur autre vie, in case there be no special occupant thereof, 
of which no devise shall have been made according to the said act, 
or so much thereof as shall not have been so devised, shall go, be 
applied, and distributed in the same manner as the personal estate 
of the testator or intestate." 3 A more recent act provides that 
estates pur autre vie, if not devised, shall be chargeable in the hands 



i Co. Litt. 41, b. 

2 1 Greenl. Cruise, 109, § 43 ; Lambert on Dower, 21, 49. 

s 14 Geo. II. oh. 20, <S 9. 



OH. XVII.] ESTATES NOT OP INHERITANCE. 345 

of the heir, as assets by descent; and if there be no special occupant, 
they are to go as already provided. 1 

4. The right of special occupancy existed where an estate was 
limited to the grantee and his heirs, pur autre vie; in which case 
the heir or heirs of the grantee, upon his death, would have the ex- 
clusive right, by the terms of the original grant, to enter and occupy 
the lands during the residue of the term, and no right of general 
occupancy could arise. 2 But although this interest partook very 
much of the character of a descendible freehold estate, yet by the 
common law it furnished no foundation for the estate of dower. 3 
Nor do the several acts of Parliament above referred to change this 
common law rule in any particular. The effect of these enactments 
is simply to abrogate the right of general occupancy; to confer upon 
the grantee of an estate pur autre vie the right to dispose of the un- 
expired portion of the term by will; and to direct, in substance, that 
such interest of the deceased grantee shall be held and treated as 
personal estate. 4 

5. An estate is sometimes created for the life of the tenant, and 
the life or lives of one or more third persons. It may also be made 
to depend upon a contingency, the happening of which will determine 
it before the death of the grantee. It is hardly necessary to add 
that in neither of these cases is the estate subject to dower. 5 

The rule in the United States. 

6. The provisions of the English statutes relating to estates pur 
autre vie have been substantially adopted in New York, 6 New Jer- 



1 1 Victoria, oh. 26. See, also, as to the rights of residuary legatees, Ripley v. 
Waterworth, 7 Ves. Jr. 425 ; Milner v. Lord Harewood, 18 Ves. Jr. 259. 

2 Doe v. Robinson, 8 Barn. & Cress. 296 ; 1 Greenl. Cruise, 111, \ 48. 

s Plow. 556 ; 1 Bulstr. 135 ; Cro. Eliz. 805 ; Park on Dower, 48, 49. And see 
Braoton, 92, b.; Low v. Burron, 3 P. W. 262; 1 Ves. Sr. 303. 

4 Reference may also be had to the following additional authorities : Lord Wind- 
sor's case, 3 Leon. 35; Dyer, 328, b., pi. 10; Buller v. Cheverton, 2 Roll. Abr. 151 ; 
Salter v. Butler, Moo. 664; CrcEliz. 901; Yelv. 9; Westfaling v. Westfaling, 3 
Atk. 460; Williams v. Jekyl, 2 Ves. Sr. 681 ; Atkinson v. Baker, 4 Term R. 229; Bac. 
Abr. tit. Est. for Life, 3; 4 Kent, 27; 1 Greenl. Cruise, 110-113, where the English 
cases are collected and considered. 

6 Brae. lib. 4, c. 28, sec. 1 ; Co. Litt. 42, a.; The People v. Gillis, 24 Wend. 201 ; 
4 Kent, 26. 

« 2 Rev. Stat. N. Y. (3d ed.) p. 9, <S 6. 



346 THE LAW OF DOWER. ' [CH. XVII. 

sey, 1 Virginia, 2 Maryland, 3 Kentucky, 4 Indiana, 6 Rhode Island, 6 Ala- 
bama, 7 Arkansas, 8 Wisconsin, 9 and Mississippi. 10 In Massachusetts," 
-Maine, 12 North Carolina, 13 and Vermont," estates pur autre vie are 
made descendible like fee simple estates. 

7. The rule of the common law upon the subject of dower in estates 
pur autre vie was recognized and applied in New York at an early 
day in the case of Gillis v. Brown. 15 In that case the life estate of a 
tenant by the curtesy initiate was sold on execution, and after the 
death of the purchaser, which happened during the lifetime of the 
tenant, his widow claimed dower in the estate. The claim was dis- 
allowed. "The husband of the demandant," the court said, "had 
not an estate that could descend to his heirs. It was pur autre vie. 
By the English statute, (29 Car. 2, ch. 3, sec. 12,) such an estate 
descends to the heir if it comes to him as a special occupant. It was 
enacted to prevent the mischief which previously existed, that where 
no special occupant was designated by the grant, it belonged to the 
person who first took possession. 4 D. <f E. 229. This act enables 
the proprietor to devise the estate; but when no devise is made, it is 
chargeable in the hands of the heir, if it comes to him by reason of 
a special occupancy, as assets by descent, as in case of lands in fee 
simple ; and if there be no special occupant, it shall go to the execu- 
tor and be assets. Our act (1 R. L. 365, s. 4) declares that estates 
of this description shall be devisable; and if no devise be made they 
shall go to the executor or administrator, to be applied and distrib- 
uted as part of the personal estate. The consequence is the demand- 
ant is not entitled to dower." 



i Rev. Code, 1820, p. 223 ; Elmer's Dig. p. 596, (S 5 ; Act of April 15, 1846, Nixon's 
Dig. p. 873. 

» Hen. Stat, at Large, vol. xii. p. 152, g 51 ; Code of Va. (1849,) p. 500, <S 5. 

a 1 Dorsey, p. 389 ; 1 Maryl. Code, p. 666, \ 220. 

<■ Rev. Stat. Ky. (1852,) p. 190, g 13 ; 2 Stanton's Rev. p. 226, <S 6. 

6 Rev. Stat. 1843, ch. 30, art. 1, j! 6. 

« Rev. Stat. 1844, p. 231 ; Rev. Stat. 1857, p. 537, <j 1. 

' Toulmin's Dig. p. 883, \ 2. 

s Ark. Rev. Stat. ch. 4, <S 145; Dig. Ark. Stat. ch. 6, \ 67. 

P Rev. Stat. Wis. (1858,) p. 525, \ 6. 

io Rev. Code Missis. (1857,) p. 306, \ 1. 

" Mass. Rev. Stat. ch. 61, \ 1 ; Gen. Stat. Mass. p. 476, \ 1. 

12 Rev. Stat. (1857,) ch. 74, \ 1. 

is Rev. N. C. Code, (1849,) p. 250, Rule 12. 

" Comp. Stat. Verm. (1850,) p. 364, \ 1. 

" Gillis ». Brown, 5 Cow. 388. 



CH. XVII.] ESTATES NOT OF INHERITANCE. 347 

8. In Mississippi, also, it has been held that an estate pur autre 
vie is not subject to dower. 1 And in Missouri, under the act con- 
verting the estate of the first donee in tail into an estate for life, 
with remainder in fee to his heirs, it was adjudged that dower does 
not attach upon the estate of such donee. 2 But in New Jersey, in 
cases of this description, a contrary rule prevails, by express stat- 
ute. 3 In Vermont, where the husband had conveyed certain lands, 
(his wife not joining,) reserving an estate therein during his own life 
and the life of his wife, it was held that she was dowable of the 
lands.f In North Carolina a testator died, leaving a will containing, 
among others, the following provision : "I will to my son B. all my 
estate, real and personal, for his use and benefit, and then to be 
divided off and distributed among his children, as he may think 
proper ; that is to say, my land to be used by him, and the profits 
thereof to be to him, but the lands to be by him divided and distrib- 
uted among his children, as he shall think proper." It was decided 
that under this will the son took but an estate for life in the land, 
with the power of dividing it, at, or prior to his decease, among his 
children, and that until such appointment the remainder in fee either 
vested in the children or descended to the heirs of the testator, and 
that the widow of the son had no dower in the land. 5 

9. In those States in which dower is allowed in estates for years, 
it would seem, upon principle, that estates pur autre vie, which are 
of a higher nature, should also be regarded as subject to the same 
right. 

Estates for years. 

10. The principles of the common law did not permit a right of 
dower to attach upon a mere chattel interest in lands, and so strict 
was the law in this respect that an estate for two thousand years, no 
matter in what form, or by what instrument created, would not con- 
fer dower upon the widow of the lessee, although such estate might 
be equally valuable, in point of occupation, with the inheritance 
itself. 5 In some of the States this rule has been modified, but in a 

i Fisher v. Grimes, 1 S. & M. Ch'. 107. 

5 BurriB v. Page, 12 Misso. 358. 
a Nixon'B Dig. p. 196, \ 11. 

* Gorham v. Daniels, 23 Verm. 600. See note to this case, per Kedfield, J., p. 612. 

6 Alexander v. Cunningham, 5 Ired. 430. See, also, Thompson v. Vance, 1 Met. 
(Ky.) 669. 

« Park, Dow. 47, 48. 



348 THE LAW OF DOWEE. [CH. XVII. 

majority of them the doctrine of the common law is preserved in all 
its rigor. 

11. Thus, in Maryland it was held that a leasehold estate for a 
term of years, even where the lease contained a covenant on the part 
of the lessor to convey the fee simple to the lessee upon request, did 
not confer dower. 1 And it was decided in the same case that a lease 
for ninety-nine years renewable forever, was a mere chattel interest, 
and not an estate in lands from which dower could be claimed. The 
same point was ruled the same way in Mississippi. 2 And in New 
York it was determined that the statute giving to a widow the right 
to tarry forty days in the chief house of her deceased husband, had 
no application to leasehold property, but related solely to lands in 
which she had a right of dower. 3 

12. The Dower Act of Massachusetts contains the following pro- 
vision : — 

When land is devised for the term of one hundred years or more, the term 
shall, so long as fifty years thereof remain unexpired, be regarded as an estate 
in fee simple as to everything concerning the descent and devise thereof upon 
the decease of the owner, the right of dower therein, the estate in lieu of dower, 
and the sale thereof by executors, administrators, or guardians, by license from 
any court ; and also as to the levying of executions thereon, and the redemption 
thereof when taken on execution, or mortgage. 1 

The same act further provides that 

When dower, or an estate in lieu of dower is assigned out of such land, the 
widow and her assignee shall be held to pay to the owner of the unexpired resi- 
due of the term, in case of dower, one third, and in case of an estate in lieu of 
dower, one half of the rent reserved in the lease under which the husband held 
the term. 5 

13. By the statute of Missouri 

Dower in leasehold estate's for a term of twenty years or more, shall be granted 
and assigned as in real estate ; for a less term than twenty years, shall be granted 
and assigned as in personal property. 6 

This provision is copied into the Dower Law of Kansas. 7 



1 Spangler v. Stanler, 1 Md. Ch. Dec. 36. 

2 Ware v. Washington, 6 Smedes & Marsh. 737. 
s Voelckner v. Hudson, 1 Sandf. S. C. Rep. 215. 

* Gen. Stat. Mass. (I860,) p. 471, <S 20; Rev. Stat. Mass. (1836,) p. 411, <S 18. 
6 Gen. Stat. Mass. (I860,) p. 471, \ 22. 
« Rev. Stat. Misso. (1845,) p. 430, g 1. 
' Comp. Laws Kansas, (1862,) p. 478, \ 1. 



CH. XVII.] , ESTATES NOT OF INHERITANCE. 349 

14. In Ohio the law upon this subject seemed, at one time, in 
rather a peculiar and unsettled condition. A statute in force since 
1805 not only gives to the widow dower in estates of inheritance, 
but also in "all the right or interest that her husband, at the time 
of his decease, had in any lands and tenements held by bond, article, 
le'ase, or other evidence of claim." 1 This statute clearly limits the 
right of dower in simple leasehold estates, to cases where the interest 
of the husband has not been disposed of in his lifetime, 2 and if there 
were no other legislation upon the subject, no difficulty could well 
arise as to the rights of the widow in this description of property. 
But owing to the course of legislation in Ohio, investing leasehold 
interests of & permanent nature with attributes entirely unknown to 
them at common law, and the judicial exposition which has, in some 
instances, been given these statutes, a question may possibly arise 
whether, where the husband has acquired a permanent leasehold 
estate, he is not to be regarded, in effect, as holding the land in fee 
simple, and the wife, as to that estate, entitled to her dower pre- 
cisely as in an estate of inheritance. 

15. As early as 1821 a statute was in force in Ohio which pro- 
vided that all permanent leasehold estates should be considered and 
treated as real estate in proceedings on judgment and execution 
against the lessees, and that the officer acting in the premises should 
be governed by the statutes in force regulating sales of real estate 
on execution. 3 This statute, however, appears to have been regarded 
as directing the mode and manner in which permanent leasehold 
property should be subjected to levy and judicial sale, and as regu- 
lating judgment liens thereon, rather than as fixing and declaring 
the nature and character of the estate itself; for, in a case arising a 
few years after the passage of the act, it was held that a lease for 
ninety-nine years renewable forever, was personal estate, vesting, on 
the death of the lessee, in his personal representatives, and not sub- 



1 1 Chase, 472; re-enacted Jan. 1824, 29 Ohio Laws, 249, g 1 ; and in amendatory 
act of March, 1858, 55 Ohio Laws, 24; 1 Swan & Critchf. 516, <j 1. 

* Judge Walker appears to have doubted whether leasehold estates are subject to 
dower in Ohio. "The term 'lease,' used in the statute," he says, "probably has no 
meaning." Walker's Intr. (2d ed.) 314. But it is difficult to assign any sufficient 
reason for disregarding the language of the statute, which seems too explicit to 
admit of much question as to the intention of the legislature. 

» 2 Chase, 1185. 



350 THE LAW OF DOWER. [CH. XVII. 

ject to the control of his -widow or heirs. 1 The doctrine of this case 
was shortly afterwards approved in Murdock v. Ratcliff, 2 and the 
court there made use of this emphatic language: "No proposition 
has been better settled from the earliest days of the common law, 
than that a lease, of whatever duration, is but a chattel." 

16. In March, 1839, a new statute was passed, extending the pro- 
visions of the former law, and enacting "that permanent leasehold 
estates renewable forever, shall be subject to the same law of descent 
and distribution as estates in fee are, or may be subject to; and 
sales thereof upon execution, or by order or decree of the court, 
shall be governed by the same laws that now are, or may hereafter 
govern such sales of estates in fee." 3 This act repealed a prior stat- 
ute substantially to the same effect, passed in March, 1837, 4 and is 
still in force. In the case of Loring v. Melendy, 8 which arose after 
the passage of the act of 1839, the judge who delivered the opinion 
of the court used this language : " Since the passage of this last act 
we may feel ourselves admonished by the uniform policy of the legis- 
lature, by calling things by their real names, to harmonize our whole 
system of legal jurisprudence. To withdraw permanent leasehold 
estates from their anomalous position between chattel and realty, and 
by calling them what in truth they are, lands, we relieve them from 
all doubt as to the principles and laws which shall control them, and 
assign to them a certain and fixed place in the law. A permanent 
leasehold estate is not a chattel, but is, in truth, land carrying the 
fee. Such is the nature of the estate, and so it has been treated and 
considered in the legislation of the State. We therefore declare that 
permanent leasehold estates are lands, subject to all the rules and 
laws which attach to land for all purposes." 

17. If the doctrine stated in these broad and comprehensive terms 
is to be applied in its full extent, the question may well arise, as 
already remarked, whether, as to leasehold estates of permanent 
duration, the right of dower is not governed by a different rule from 



1 Reynolds ■». Com. Stark Co., 5 Ohio K. 204. And see opinion of Birohard, J., in 
North. Bk. Ky. v. Roosa, 13 Ohio, 334, 363. 

2 Murdock v. Ratcliff, 7 Ohio, part 1, 119. 

s 37 Ohio Laws, 44; Swan's Slat. (ed. 1841,) 289; 2 Swan & Critchf. 1142. 
This provision is also carried into the statute regulating descents and distributions. 
1 Swan & Critchf. 505, ji 20. 

* 2 Swan & Critchf. 1142, note 2. 

6 Loring v. Melendy, 11 Ohio, 355. 



CH. XVII.] ESTATES NOT OF INHERITANCE. 351 

that which properly applies to leasehold estates of an ordinary char- 
acter ; and whether, indeed, such interests are not to be regarded, 
to all intents and purposes, as estates of inheritance, and therefore 
as falling within the first clause of the dower act giving dower in all 
the lands of which the husband was seized during the coverture, and 
not within the other provision which manifestly has reference to mere 
equities and chattel interests of which the husband died possessed. 
For if "a permanent leasehold estate is not a chattel, but is in truth 
land carrying the/ee;" and if, also, such estates "are lands, sub- 
ject to all the rules and laws which attach to land for all purposes," 
as declared in unqualified terms in the case referred to, the result 
above indicated would seem legitimately to follow. The sweeping 
effect of this declaration of the law was recognized by the Circuit 
Court of the United States for the District of Ohio, in the case of 
McLean, Assignee, v. Rockey, 1 where, in a proceeding by the assignee 
of a bankrupt, under the bankrupt law of the United States, the 
object of which was to sell leasehold property held for a term of 
ninety-nine years renewable forever, the court held, on the authority 
of Loring v. Melendy, that in Ohio, such a leasehold is real estate, 
and therefore dismissed the bill. 

18. With regard to the decision in the case of Loring v. Melendy, 
however, it is to be remarked that it gives to the act of 1839 a very 
liberal construction — more liberal, perhaps, than the fair import of 
the terms employed will fully warrant. The purpose and intent of 
the statute appears to be to bring permanent leasehold estates within 
the operation of the statutes regulating descents and distributions 
and the sale of real estate upon execution, and to go no further. 
And it may be further observed that the circumstances of the case 
did not necessarily require the court to declare as law the broad 
proposition enunciated by the judge who delivered the opinion, a fact 
which is conceded in the opinion itself. Nor is the doctrine there 
laid down founded upon the express letter of the act, but appears, 
rather, to rest upon the supposed policy which led to its enactment. 
"In thus emancipating permanent leasehold estates," the judge re- 
marks, " from a name too narrow to convey their idea, and rules too 
contracted for their control, we are only carrying out the policy of 
our legislature upon this subject. And although this case might 
have been disposed of without deciding this point, yet as it fairly 



1 McLean, Assignee, v. Rockey, 1 West. Law Jour. 300. 



352 THE LAW OF DOWER. [CH. XVII. 

comes up, and was the point upon which the case was reserved, we 
have thought proper to put this doubtful question at rest.'' That 
the question was not put at rest, however, is shown by the sub- 
sequent action of the court. In a short time afterwards grave 
doubts were thrown out as to the correctness of the obiter opinion 
above discussed. "The question whether a lease be realty or per- 
sonalty," said the chief justice, "need not be here determined; but 
I take the opportunity to express my apprehension that the case 
reported last year (Loring v. Melendy and others, 11 Ohio Rep. 355) 
does not conclude this point, and I shall be ready to consider it when 
it becomes necessary." 1 On a subsequent occasion the court again 
referred to Loring v. Melendy, and observed that the opinion deliv- 
ered in that case upon the question as to the nature of a permanent 
leasehold estate, was not considered by all the court at the time. 
"Hence," they added, "the remark made in the case of lessee of 
Boyd v. Talbert, 12 Ohio Rep. 213, 'the question whether a lease 
be realty or personalty,' is open." 2 And after considering the sev- 
eral statutes relating to the subject, and reviewing the authorities, 
they proceeded to dispose of the question as follows : "We hold, then, 
that for all purposes connected with the laws regulating judgments, 
executions, sales, and descents, permanent leasehold estates are to 
be regarded as if they were freeholds, and not chattels." 3 So long 
as there is no departure from this sensible construction of the acts 
of 1821 and 1839, the law with respect to dower in leasehold prop- 
erty is entirely free from difficulty. A permanent leasehold interest 
is to be proceeded against on judgment and execution as if it were a 
freehold estate. It is also to descend to the heir at law as realty, 
and not go to the administrator as personalty. But in all other 
respects, and for all other purposes, it retains the character im- 
pressed upon it by the common law. And if a husband die pos- 
sessed of an interest in lands for a term of years, no matter what 
may be the extent of the term, his widow is entitled to be endowed 
of that interest in proportion to its duration and value. But if he 
dispose of it in his lifetime, then no right of dower attaches. 

i In Boyd ». Talbert, 12 Ohio, 212. 
s North. Bk. of Ky. v. Roosa, 13 Ohio, 334. 

3 Approved in Buckingham v. Reeve, 19 Ohio, 399, 405. See, also, McAlpin v. 
Woodruff, 11 Ohio State, 120, 128. 



CH. XVII.] ESTATES NOT OP INHERITANCE. 353 



Estates at will. 

19. It is apparent, from what has heen already said, that estates 
held at the will of the lessor are not subject to dower. By the rules 
of the common law, a copyholder is, strictly speaking, a tenant at 
will ; and it is well settled that a copyhold estate does not confer a 
right of dower. 1 In England, by special custom in particular local- 
ities, a widow is entitled to what is called her freebenoh in copyhold 
estates ; and this interest, which is limited to the estate of which her 
husband died seized, and which varies in extent in different portions 
of the country, resembles, in many respects, the estate of dower, and 
sometimes receives that appellation. It is, however, purely the creature 
of local custom, and such custom being contrary to the general rule of 
the common law, when alleged to exist as the foundation of a right 
of dower, or freebench, must be strictly proved. 2 But if a tenant at 
will make a feoffment, the feoffee is estopped from denying the seizin 
of the feoffor in an action brought by his widow to recover her 
dower. 3 

Wrongful estates. 

20. It is sometimes said that a right of dower does not attach 
upon what is termed a wrongful estate, that is, the estate of a dis- 
seizor, abator, intruder, or the like. This proposition is true only, 
in a qualified sense ; for until the wrongful estate has been avoided 
by the entry or action of the person entitled to the possession, or 
by operation of the law of remitter, the mere naked seizin of the 
husband, though wrongfully acquired, will support a right of dower 
as against all persons deriving title under such tortious seizin. 4 But 
after the wrongful estate has been determined in either of the modes 
above mentioned, the right to dower therein ceases also. Therefore, 

1 4 Co. 22, »., 22, b., and notes ; Shaw v. Thompson, 4 Co. 30, b.; Vin. Abr. Copy- 
hold, M. d. pi. 1 ; 0. d. pi. 1 ; Dower, 0. a. pi. 1 ; Com. Dig. Copyhold, K. 2 ; Bao. 
Ab. Copyhold, C. 2 ; Hob. 215, 216 ; Park, Dow. 48. 

2 Shaw v. Thompson, 4 Co. 30, b.; 4 Co. 22, a., 22, b., and note; Park, Dow. 48. 
See, also, 2 Bl. Com. 129, and notes. 

3 Taylor's case, cited 6 John. Rep. 293; Tud. Caa. 44; 1 Washb. Real Prop. 191. 

*Bro. Dow. pi. 50; Fitz. Dow. 98; Perk. \ 420; Park, Dow. 37, 141, 142; Bis- 
set, Est. for Life, 92, 93 ; 1 Hilliard, Real Prop. 147, \ 39. See, also, ante, ch. 12, 
\\ 31, 32, and ch. 14, \ 2. 

vol. i. 23 



854 THE LAW OF DOWER. [CH. XVII. 

if the owner of an estate be disseized, and the disseizor marry, and 
afterwards the disseizee enter upon, or recover against the dis- 
seizor, the title of dower in the wife of the disseizor is defeated; and 
if the disseizor die seized, and his heir actually endow the widow, 
a recovery of the lands by the disseizee against the heir and the 
widow, will terminate the dower interest of the latter. 1 The dif- 
ference with regard to the defeasible character of the estate of the 
heir and of that of the widow of the disseizor is thus stated by Lit- 
tleton : "Also if a disseizor die seized, &c, and his heir enter, &c. 
who endoweth the wife of the disseizor of the third part of the land, 
&c. in this case, as to this part which is assigned to the wife in dower, 
presently after the wife entreth and hath the possession of the same 
third part, the disseizee may lawfully enter upon the possession of 
the wife into the same third part. And the reason is for that, when 
the wife hath her dower, she shall be adjudged in immediately by her 
husband, and not by the heir; and so as to the freehold of the same 
third part the descent is defeated. And so you may see that before 
the endowment the disseizee could not enter into any part, &c, and 
after the endowment he may enter upon the wife, &c, but yet he 
can not enter upon the other two parts which the heir of the dis- 
seizor hath by the descent." 2 As to the lands assigned the wife in 
dower, it is not necessary that the disseizee should resort to a real 
action, notwithstanding a descent cast, for the endowment defeats 
the descent quoad those lands, and the disseizee may therefore bring 
ejectment against the dowress. 3 But, "if after the dying seized of 
the disseizor, the disseizee abate, against whom the wife of the dis- 
seizor recover by confession in a writ of dower, in that case, though 
the descent be avoided as Littleton here saith, yet the disseizee 
shall not enter upon the tenant in dower, because the recovery was 
against himself, but if he had assigned dower to her in pais, some 
say he should enter upon her." 4 



1 Countess of Berkshire ■«. Vanlore, Winch, 77; Poor u. Horton, 15 Barb. 485; 
Park, Dow. 141, 142 ; Bisset, Est. for Life, 92, 93 ; 4 Kent, 48. 

2 Litt. sec. 393. And see Co. Litt. 240, b., 241, a.; Gilb. on Dower, 395. "The 
doctrine contained in this section seems to apply to the cases of a recovery suffered 
by the heir, either before or after the assignment of dower." Butler's note (2), Co. 
Litt. 241, a. 

' Co. Litt. 240, b.; Park on Dower, 142, note (e). 
' Co. Litt. 241, a . 



CH. XVII.] ESTATES NOT OF INHERITANCE. 355 

21. A case showing the operation and effect of the law of remitter 
upon the right of dower in wrongful estates is given by Fitzherbert : 
"If a man have title of action to recover any land, and afterwards 
he entereth and disseizeth the tenant of the land, and dieth seized, 
and his heir entereth, the heir is remitted unto the title which his 
ancestor had, and the husband's wife shall lose the dower ; for that 
estate which the husband had is determined, for that was an estate 
in fee by wrong, and the heir hath the estate in fee which his ancestor 
had by right." 1 This case presents a marked illustration of the sub- 
tlety and refinement pervading many of the rules of the ancient 
common law relating to Real Property. A technical seizin was 
necessary to give dower ; but this requisite was satisfied by a pos- 
session acquired and maintained without lawful right. And if a 
man had title to lands, and a right of action to assert it, but no 
right of entry, and he nevertheless entered, he was treated as a dis- 
seizor ; his possession was referred to the wrongful seizin, and "not 
to his lawful title. The right of the widow to dower was, in like 
manner, limited to the wrongful estate, upon the principle before 
noticed that she was in immediately by her husband, and that her 
right was but a continuation of his estate. And yet the heir, upon 
entry made by him, by operation of the doctrine of remitter, was 
remitted to the rightful estate of his ancestor, which, as it over- 
reached the wrongful seizin upon which the right of the widow 
rested, resulted in entirely defeating her estate. And thus by an 
arbitrary rule looking to the rigid enforcement of subtle distinctions 
rather than the administration of substantial justice, the claims of 
the heir were made to override those of the widow, even to the ex- 
tent of depriving her of the provision humanely intended for her 
support. 2 The same principle is said to be applicable where a tenant 
in tail discontinues in fee, and afterwards marries, and during the 
coverture disseizes the discontinuee, and dies seized. In this case 
dower is denied to the widow upon the ground that the issue is 
remitted to the ancient entail, and the estate which the husband had 
during the coverture was wrongful. "The heir," says Fitzherbert, 
"is in of another estate of inheritance than the husband had during 



1 Fitz. N. B. 149, (F.) ; Gilb. on Dow. 393. In the case supposed the disseizin 
of the rightful owner must hare occurred before the marriage, as a disseizin during 
the coverture could not impair the right of dower. 

a See 4 Kent, 48, 49. 



356 r THB LAW OF DOWER. [CH. XVII. 

the coverture." 1 "She shall not be endowed," observes Lord Coke, 
"for that the fee simple is vanished by the remitter, and her issue 
hath the lands by force of the entail." 2 

, This arbitrary and merciless principle of the common law never 
formed a part of the American Law of Real Property. 3 

iFitzh. N. B. 149, (F.); Dyer, 41, a.; Park, Dow. 143, 144; 1 Greenl. Cruise, 
181, g 18. 
8 Co. litt. 31, b. 
» See ch. 12, \\ 6, 7, 19. See, also, 1 Hilliard, Real Prop. (2d ed.) 183, \ 33. 



CHAPTER XVIII. 

DOWER IN" RENTS AND ANNUITIES. 
\ 1-8. Dower in rents. ! \ 9-12. The doctrine as to annuities. 

Dower in rents. 

1. It is an established rule of the common law, that if a man 
make a lease of his lands for life, reserving rent to himself and his 
heirs, and afterwards marry and die, his widow shall neither be 
endowed of the reversion in the lands thus demised, nor of the rents 
reserved. She can not have dower of the reversion, "because there 
was no seizin in deed or in law of the freehold ; nor of the rent, be- 
cause the husband had but a particular estate therein, and no fee 
simple." 1 The rent in such case passes exclusively to the heir as an 
incident to the reversion. 

2. But if the husband, before marriage, convey lands in tail, 
reserving rent to himself and his heirs, the widow will be entitled to 
dower in the rent; "because," says Coke, "it is a rent in fee, and by 
possibility may continue forever." 2 The mere statement of this prop- 
osition, however, implies that if the donee in tail die without issue, 
the wife of the donor will no longer be dowable of the rent reserved, 
for thereby the estate tail from which it is derived is determ- 
ined, and as a necessary consequence the right to dower ceases also. 
Thus, it is said in Fitzherbert's Natura Brevium that "if a man 
make a gift in tail, reserving rent to him and his heirs, and after- 
wards the donor hath a wife, and the tenant in tail dieth without 
issue, the wife of the donor shall not be endowed of the rent because 
the rent is extinct, for it was reserved upon the estate tail, which is 
ended." 3 And where the wife has actually been endowed previously 

i Co. Litt. 32, a., 208, a., note 1 ; Park, Dow. 49 ; Perk. sec. 348, 467. 

2 Co. Litt. 32, a. 

» Fitzh. N. B. 149, G.; Perk. sec. 317. 

(357) 



358 THE LAW OE DOWER. [CH. XVIII. 

to the termination of the tenancy in tail, her dower shall, neverthe- 
less, cease with the determination of the estate. 1 In illustration of 
this principle, Jenkins states the following case: "So of a grant of 
rent or land to one and his heirs till the building of St. Paul's shall 
be finished : if this contingency happens, dower shall cease as in the 
other case, where, after dower, the donee dies without issue, where 
the rent is reserved upon the said gift in tail." 2 Another case tend- 
ing to elucidate this proposition is as follows: "If A. grants a rent 
out of certain lands to B. and his heirs, provided that if B. die, his 
heirs being within age, that during the non-age the terre-tenant shall 
be quit of the rent, and B. marries and dies, his heir within age, and 
the wife of B. recovers dower of the rent, execution shall be stayed 
till the heir comes to full age." 3 This case is referred to as showing 
that if the rent had been made to cease absolutely upon the event, 
the dower interest would also have been at an end. 4 To the fore- 
going may be added the following from Plowden, which, though not 
precisely in point, nevertheless very clearly illustrates the rule: "If 
a man makes a gift in tail rendering rent, and afterwards the donor 
takes a wife, she shall be endowed of the rent ; but if the donee is a 
woman who dies, and her husband is tenant by the curtesy of the 
land, and afterwards the issue in tail die without issue, now the wife 
of the donor shall not have dower of the rent; for her title of dower 
was to be endowed of the rent of inheritance ; and there can not be 
an inheritance in the rent longer than the inheritance in the land 
endures ; and so the one is in respect of the other ; and since her 
title was to be endowed of the rent of inheritance, and now the rent 
is changed into a rent for life only, and so is another degree before 
the execution of her estate, it shall never be executed, for it would 
be repugnant in itself." 8 

3. A clear distinction exists, in principle, between the case of a 
gift of lands in tail, reserving rent to the donor and his heirs, and 
the granting of a rent in tail, issuing out of lands, and care should 
be taken not to confound the two classes of cases. For, while in the 
former case dower may be claimed in the rent by the wife of the 

1 Arg. Moore, 39, pi. 126 ; Park, Dow. 161-3. The rule is the same as to curtesy. 
» Jenk. Cent. 4, Ca. 6. 

sFitzh. N.B. 149, G., note(a.); Corbet's case, 1 Co. 87, a.; Perk. sec. 327 ; Plow. 
156 ; Jenk. Cent. 4, pi. 6. 
* Park, Dow. 163, 164. 
5 Plow. 155. See, also, ante, ch. 13, \ 12, and ch. 14, \ 14. 



CH. XVIII.] RENTS AND ANNUITIES. 359 

donor during the continuance of the tenancy, yet, as we have just 
seen, her right falls with the determination of the tenancy, even after 
assignment. But where a rent is granted in tail, the wife of the 
grantee may have dower therein, although the tenancy be determ- 
ined by the death of her husband without issue. This point is very 
clearly and succinctly stated by Jenkins : "A grantee of a rent in 
fee, or in tail, takes a wife, and dies without an heir ; his wife shall 
be endowed." 1 And it makes no difference in this respect whether 
the rent be already in esse, or granted de novo. The rule is the 
same in either case. 2 This doctrine is founded upon the old common 
law principle that dower is a right or privilege annexed to the estate 
of the husband, and forming part thereof. 3 According to that prin- 
ciple the right of dower is embraced in the limitation of the original 
estate, and the rent, therefore, is as much in esse for the purposes of 
dower after the termination of the tenancy in tail, as it was for the 
purposes of that estate during its existence. Nor does it affect the 
question, as regards the right of the widow, that there is no person 
entitled in law to the remaining two-thirds of the rent. 4 

4. The foregoing discussion has rendered it, in a measure, unne- 
cessary to add here, that where a grant is made in fee of rent issuing 
out of lands, the wife of the grantee may claim dower therein — a doc- 
trine that is well settled. And, as in the case just considered with 
reference to a tenancy in tail of a rent, the death of the grantee 
without heirs, whereby his estate is determined, does not impair the 
right of the widow to her dower. She may still prosecute her claim 
to be endowed of the rent, and the law will enforce and protect such 
claim. 5 

5. It is laid down by Perkins that if a man seized of a rent charge 



1 Jenk. p. 5, Ca. 6. See, also, Co. Litt. 30, a., Lord Hale's notes. 

2 Park, Dow. 161. But see opinion of Lord Chancellor Talbot, contra, as to rents 
de novo in an expired estate tail, Chaplin v, Chaplin, 3 P. Wins. 229, and Mr. Park's 
comments thereon, Park, Dow. 160-2. 

' Paine's case, 8 Co. 207, 34, a.; 208, 34, b.; Earl of Bedford's case, 7 Co. 67, 68, 
9, a. See, also, Co. Litt. 31, b., 241, a.; Perk. sec. 317; Fitzh. N. B. 149, Q.; Bro. 
Dow. pi. 86 ; 4 Kent, 49. The principle here alluded to is more fully considered 
ante, ch. 13, \\ 12-14, and ch. 14, \\ 15-38. 

* Park, Dow. 160-2. 

5 Co. Litt. 32, a.; Jenk. Cent. p. 5, Ca. 6. See Lord Hale's notes, Co. Litt. 30, a., 
with respect to curtesy; Park, Djw. 158-6 J; Chase's case, 1 Bland, 227; 1 Washb 
Real Prop. 167, \ 24. 



360 THE LAW OF DOWER. [CH. XVIII. 

in fee, purchase the inheritance of the lands out of which the rent 
issues, his wife must elect of which she will be endowed. 1 And this 
appears to be law at the present day. 2 The author last referred to, 
however, extends this principle to the case of a feoffment in fee by 
the husband, reserving rent, and maintains that the widow must elect 
to be endowed either of the lands or of the rent ; and that if she 
make choice of the former, she shall hold the part assigned her, dis- 
charged of the latter. 3 The authority cited and relied upon for this 
position is Perkins, section 324. It has been doubted whether this 
authority supports the doctrine thus laid down. The section in ques- 
tion reads as follows, the words in brackets, however, being inserted 
by Mr. Greening, the accomplished English editor of Perkins: "And 
some persons hold opinion that in a special case, a wife shall be en- 
dowed of land, and also of a rent issuing out of the same land : And 
therefore, they say, that if a man be seized of four acres of land in 
fee, and take a wife, and enfeoff a stranger thereof by deed indented, 
rendering unto him and his heirs three shillings rent, with a clause 
of distress, and die ; and the feoffee endows the wife of the feoffor of the 
third part of the land, the land which is assigned to her in dower is dis- 
charged of the rent, and the whole rent is issuing out of the residue of 
the land: [And she shall be endowed of this rent, also:] And the reason 
is, because the wife shall be endowed of the best possession which her 
husband had during the coverture ; and the husband was seized of 
this land during the coverture discharged of the rent ; and so, &c. 
And this rent is a rent charge, and doth not come in lieu of the land ; 
and the husband had an estate in fee in the rent during the coverture." 
Mr. Greening appends to this section the following observations,: 
" The words between the brackets in this section are not in the text 
of any copy of the work which the editor has seen, but appear want- 
ing to complete the sense of the section ; and the position is taken 
to be law. With regard to the wife's right to dower in the land dis- 
charged of the rent, there can be no difference of opinion ; and as 
the rent charge must be construed to be granted by the feoffee, it is 
a new purchase by the husband, (Co. Litt. 12, b.) of which he was 
seized in fee, and of which prima facie the wife is, therefore, dow- 
able ; and the consideration for the rent, or the land upon which it 
is charged, could not be regarded by the law; or if it were, would 



i Perk. sec. 320. 2 1 Roper, Hush, and Wife, 345. 

8 1 Roper, Husb. and Wife, by Jacob, 347, 348. 



CH. XVIII.] RENTS AND ANNUITIES. 361 

not vary the construction. This case is clearly different from that 
cited 1 Inst. 150, a. and put by Hale in his note to Co. Litt. 12, b., 
where the wife was entitled to an estate for life in the whole rent by 
purchase. The case of dower on an exchange, it will be recollected, 
is an exception, not a rule. Mr. Roper (Husband and Wife, 1, 345) 
says, the wife shall elect between the land and the rent, and cites 
this section as his authority; it does not appear to support him. 
The point is noticed, and some references upon it given in Fitz. Abr. 
tit. Bower, pi. 63." 1 

6. An estate for years, whether created before or after marriage; 
and if after marriage whether the wife join therein or not, inter- 
poses no obstacle to a claim of dower. 2 In every such case the wife 
is entitled to be endowed of the reversion in fee, and also of a pro- 
portionate part of the rent as incident to the reversion. 3 "If the 
husband maketh a lease for years reserving a rent, and taketh wife, 
the husband dieth, the wife shall be endowed of the third part of the 
reversion by metes and bounds, together with the third part of the 
rent, and execution shall not cease during the years. And herewith 
agreeth the common experience at this day." 4 This rule was applied 
by the Supreme Court of the United States in a case where the wife 
joined in the execution of the lease, upon the principle, it would 
seem, that a release from the wife to the lessee amounts only to a 
confirmation of his title. 5 And a similar decision has been made in 
New York, the court holding that, as between tbe wife and the heirs 
of the husband, such a release by her is no relinquishment of her 
right of dower. 6 

7. But where no rent is reserved in a lease made by the husband 
before marriage, or by the husband and wife after marriage, in either 
case, the wife, although entitled to her dower in the lands demised, 
will nevertheless take it subject to the term, and with a cessat exe- 
cutio during the term, and she can neither enter nor receive any 

1 See, also, Perk. see. 326, and note to that section. 

2 See ante, ch. 11, \l 5, 11, 12. 

a Co. Litt. 29, b., 32, a., 208, a., note 1; Vin. Abr. tit. Dower, 233, pi. 7; Park, 
Dow. 77; 1 Greenl. Cruise, 178, \ 9; Wheatly v. Best, Cro. Eliz. 564; Stoughton v. 
Leigh, 1 Taunt. 402; Herbert v. Wren, 7 Crancb, 370; Williams v. Cox, 3 Edw. Ch. 
178; Weir v. Humphries, 4 Ired. Eq. 264; 4 Kent, 40; 1 Hilliard on Real Prop. 
(2d ed.) 134, {! 46 ; Perk, by Greening, sec. 348, note. 

* Co. Litt. 32, a., 32, b., 208, a., note 1. 

5 Herbert v. Wren, 7 Cranch, 370; 1 Hilliard on Real Prop. (2d ed.) 134, <5 46. 

6 Williams v. Cox, 3 Edw. Ch. 178. 



362 THE LAW OF DOWER. [CH. XVIII. 

profit until it has terminated. 1 This, if the term be of long dura- 
tion, virtually deprives her of her dower. In like manner, where 
there is a gift by will to one for a term, with remainder to another 
in fee, the wife of the latter, though she has a right of dower, takes 
it subject to the existing term. The same rule applies to all chattel 
interests in lands, as well as to terms, strictly speaking. Thus, 
where a testator devised a cotton factory and all its appurtenances 
to his three children, to be equally divided among them, as also the 
profits, when the youngest should arrive at twenty-one years of age, 
and in the mean time the factory was to be carried on under the sole 
management and direction of the executor until such period of divi- 
sion, and the profits were to be suffered to accumulate ; and one of 
the children died before such period, leaving a widow, it was held 
that although this was such a chattel interest in the executor as did 
not prevent the assignment of dower to the son's widow, yet that it 
had the effect to postpone the enjoyment of the dower interest until 
the time appointed for the division. 2 And although where rent is 
reserved upon a lease for years, the wife is entitled to be endowed 
of the rent, and the judgment in such case is general, giving her 
dower in the rent and the reversion, yet the execution is special, 
and the sheriff is not authorized nor required to oust the tenant, but 
merely to enter and demand seizin for the widow. 3 

8. It has been already stated that at common law no right of 
dower attaches upon an estate pur autre vie, even where such estate 
is made descendible to the heirs of the grantee as special occupants.* 
This principle extends also to rents granted pur autre vie; as where 
a rent is granted to A. and his heirs during the life of B. The wife 
of A. has no right of dower in such rent. 5 

i Co. Litt. 208, u., note 1 ; Williams v Wray, 1 P. Wms. 137; Park, Dow. 77, 78; 
Weir v. Humphries, 4 Ired. Eq. 264, 274, 275; 1 Hilliard, Real Prop. (2d ed.) 134, 
§ 46. This is the rule at law. In equity, however, relief is given the dowress as 
against the heir or devisee of the husband where the term is attendant upon the 
reversion, that is to say, where it is held in trust for those interested in the inherit- 
ance, or is satisfied; though in the English courts the rule is otherwise as to a 
purchaser. See Park, Dow. ch. 17, and post, ch. 23, \ 3, note. 

2 Weir v